A family sit together under a paper 'roof', representing Leaseholder Protections under The Building Safety Act. SAM Conveyancing explains your rights and how to get your deed of certificate.
Selling a flat with leaseholder protections?
Our excellent conveyancing solicitors have experience handling transactions of flats affected by the cladding crisis.

All our fees are Fixed and if the transaction falls through, you'll be protected by our no sale, no fee, guarantee.
Get a Conveyancing Quote
 
 

Leaseholder Protections

09/02/2023
(Last Updated: 08/11/2023)
2,536
5 min read

Key Takeaways

  • Leaseholder protections came into force with The Building Safety Act 2022
  • It applies to buildings over 11 metres or 5 storeys, for buildings built between 28th June 1992 and 27th June 2022 for Qualifying Leaseholders as at the 14th February 2022
  • Qualifying leaseholders are protected from the financial burden of remediation costs concerning building safety
  • Sellers will need a Leaseholders Deed of Certificate to confirm to buyers that the leasehold is subject to leaseholder protections
  • There was an issue where leaseholder protections were not being transferred in a lease extension by the existing owner, but this has now been rectified with the enaction of the Levelling-up and Regeneration Act 2023. Leaseholder protections are transferred to the new lease or owner in sale and extension.

Following the tragic Grenfell disaster, many more buildings around the country were discovered to have unsafe cladding. Many landlords and developers attempted to pass the burden of remediation costs onto the leaseholders, as they would have done with other major works.

Homeowners were rightly furious to find that they had invested all their money into unsafe homes. Not only was their safety at risk, they were expected to cover the expense of fixing the problem, while landlords and developers kept their profits. To add insult to injury, this devalued their leasehold, making it impossible to re-mortgage. Many were forced to sell at a loss.

What is leasehold protection?

Leasehold protection makes those responsible for building or refurbishing defective buildings pay to fix them. It ensures that the industry contributes to the solution and that the leaseholders are protected from the financial burden of remedying the problem.

Qualifying leaseholders are protected from all cladding remediation costs. Costs relating to non-cladding safety defects and interim measures (including waking watch) are also capped for qualifying leaseholders and must be spread over 10 years.

Do leaseholder protections apply to me?


To qualify for leaseholder protections, your building must meet all of the following criteria:
  • it is at least 11 metres in height or has at least five storeys (whichever is reached first)
  • it contains at least two dwellings
  • it is not a leaseholder-owned building
A relevant building can be either a self contained building or a self contained part of a larger building.

The following buildings do not qualify for leaseholder protections:
  • Commonhold buildings
  • Leaseholder owned buildings
To qualify for leaseholder protections, the defect must meet all of the following criteria:
  • it puts people’s safety at risk from the spread of fire or structural collapse
  • it has arisen from work done to a building, including the use of inappropriate or defective products, during its construction, or any later works (such as refurbishment or remediation)
  • it has been created in the 30 years prior to the leaseholder protections coming into force (28 June 1992 to 27 June 2022), and
  • it relates to at least one of the following types of works:
    • the initial construction of the building,
    • the conversion of a non-residential building into a residential building, or
    • any other works undertaken or commissioned by or on behalf of the building owner, or management company.
Work done before or after 28 June 2022 to remediate a relevant defect is also covered

Defects that have arisen in relation to professional services are also covered by the definition of relevant defect. (i.e. If an architect or building designer specified the inappropriate use of flammable materials on a building and the contractor followed those designs).

The following defects are not relevant defects to qualify for leaseholder protections:
  • Wear & tear
  • Routine maintenance
To qualify for leaseholder protections, your lease must meet all of the following criteria:
  • it is a long lease (more than 21 years in length) of a single dwelling within a building of above 11 metres or at least five storeys
  • you are responsible for paying a service charge
  • the lease was granted before the 14 February 2022
  • on 14 February 2022:
    • the dwelling was your only or main home, meaning it was the home where you spent most of your time, or
    • you did not own more than 3 dwellings in the United Kingdom in total - please note, dwellings outside of England will not be covered by the leaseholder protections.
  • it is in England.

The protections do not apply to properties
  • in Wales,
  • in Scotland, or
  • in Northern Ireland
The 'qualifying date' is 14th February 2022.

The leaseholder and landlord tests apply from the qualifying date.

If a dwelling was let under two or more leases on the qualifying date, any lease which is superior to another lease (head lease) is not a qualifying lease.

If a lease/leasehold qualifies for leaseholder protections on the qualifying date, the leaseholder protections pass on to future buyers of the lease.

Source: Gov.UK

Do I need a Deed of Certificate?

To enjoy the leaseholder protections granted by the Act, you'll need a Deed of Certificate. You can complete one voluntarily at any time, but you must complete one if your landlord requests it, either because you are selling your leasehold or because there is a relevant defect in the building.

How do I get a Deed of Certificate?

You complete an online form, which you give to your building owner, who will use it to determine that you qualify and to calculate the cap which applies for non-cladding remediation costs.

Is there a time limit to produce a Deed of Certificate?

Your building owner will ask you for a Deed of Certificate, by issuing a written notice, if there is a relevant defect or if you are selling your leasehold. You must complete a deed of certificate and submit it to your building owner within 8 weeks of receiving this request (unless they give a longer deadline, in the written notice).

If you do not return the completed Deed of Certificate in time:
  • your lease will be treated as though it is not a qualifying lease
  • your building owner may assume that you own a 100% share, even if your lease is shared ownership
  • the qualifying lease may be deemed to have a higher value

You may wish to send it to your landlord by recorded post, but this is not necessary and your landlord does not need to provide any receipt. You should keep copies of your Deed of Certificate.

What legal rights do leaseholders have?

In addition to the leasehold protections of 2022, leaseholders have many legal rights set out in the Leasehold Reform Act, including the right to:
  • extend the lease or buy the freehold of a house under the Leasehold Reform Act 1967
  • extend the lease or buy the freehold of a flat provided that certain criteria are met
  • buy the freehold of a flat when it is sold, under the Landlord and Tenant Act 1987
  • pay a service or administration charge in as far as it is 'reasonable', and to be consulted about certain works
  • have information on how to challenge service charges
  • form a company which can take over responsibility for management of the block
  • avoid repossession for arrears of ground rent or service charges when the debt is relatively low
Source: Shelter

Many of your rights are granted by the terms of your lease, which become legal rights under contract law.

Building Safety Act 2022 explained by SAM Conveyancing. Is your property a relevant building? It must be at least 11m in height / 5 storeys (whichever is reached first), contain at least 2 dwellings, not be a leaseholder owned building (buildings run by a residents management company are not relevant) and be built between 1922 - 2022. If no, then no certificate required. If yes, is the leaseholder a qualifying leaseholder? If the building is relevant, a leaseholder will be qualified if on the 14th Feb 2022 the property was their main home (where they spent most of their time) OR they owned no more than 3 dwellings in the UK in total (dwellings outside of England will not be covered by or count towards leaseholder protection). You are also a qualifying leaseholder if you have bought your property since 14th February 2022 but either of the two points above was true for the property on that date. If you are a qualifying leaseholder, you must obtain landlord's certificate and leaseholder's certificate. A landlord's certificate is: signed by current landlord, based on circumstances of whoever was landlord on 14th February 2022, compliant with The Building Safety (Leaseholder Protections) (England Regulations 2022) and if the building owner does not provide a certificate, the remediation costs cannot be passed on to the leaseholder. A landlord's certificate must be provided: when the landlord wants to pass on part of the cost of remediation to the leaseholder via service charges, within 4 weeks of receiving a notification from a leaseholder that the leasehold interest is to be sold or within 4 weeks of the building owner becoming aware of a relevant defect which was not covered by a previous landlord's certificate. It is required to establish whether the leaseholder qualifies for the protection provided by the Building Safety Act 2022 and compels the building owner to calculate the maximum cap or ceiling for historical non-cladding safety remediation costs incurred. A Deed of Certificate has the following purposes: it confirms whether a leaseholder is eligible for leaseholder protection, the leaseholder can choose to complete and send a deed of certificate to the landlord at any time, a leaseholder must complete a deed of certificate if the landlord requires it as the leaseholder is selling or the building has a relevant defect, it can be produced by the leaseholder at any time and can be requested by a building owner at any time.

Frequently Asked Questions
LRA
FHRights
Caragh Bailey, Digital Marketing Manager
Written by:

Caragh is an excellent writer in her own right as well as an accomplished copy editor for both fiction and non-fiction books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey and mortgage related articles.

Andrew Boast of Sam Conveyancing
Reviewed by:
Andrew started his career in 2000 working within conveyancing solicitor firms and grew hands-on knowledge of a wide variety of conveyancing challenges and solutions. After helping in excess of 50,000 clients in his career, he uses all this experience within his article writing for SAM, mainstream media and his self published book How to Buy a House Without Killing Anyone.

People also searched for

The fire damaged exterior of a panel clad apartment building. SAM Conveyancing's guide on Staircasing or Remortgaging with dangerous cladding

Dangerous Cladding - Is your Flat Still Saleable?

12/01/2023
126
A skyline showing several high rise tower blocks of flats with cladding. Let SAM Conveyancing help if you're selling a flat with cladding

Selling a Flat With Cladding

12/01/2023
1,387
A couple sign their paperwork for Buying a Flat With Section 20 Notice. SAM Conveyancing explains the implications

Buying a Flat With Section 20 Notice

06/02/2023
2,094
A couple celebrate their completed transaction with Leasehold Solicitors from SAM Conveyancing

Leasehold Solicitors

18/07/2023
398