Identifying RAAC
While some government departments have commissioned surveys to identify and quantify the risk of RAAC across their portfolios, many commercial real estate owners and occupiers simply do not know if RAAC is present in their buildings.
Building surveys of the kind which may identify RAAC are typically only commissioned when there is a property transaction and, unless a surveyor is specifically appointed to check for RAAC, many owners and occupiers may not become aware of any potential risk.
The Building Safety Act 2022 (BSA) requires anyone with responsibility for the common parts, or structure and exterior of a “Higher Risk Building” (i.e. one which is at least 18 metres or 7 storeys high and contains at least two dwellings) to assess and manage “building safety risks”, and produce a safety case report detailing the steps they have taken.
“Building safety risks” are not limited in the BSA to the spread of fire, but also include the risk of structural failure. The government guidance accompanying the BSA also emphasises the need to manage “any materials or techniques with known challenges”. While this may originally have been intended to focus in particular on certain types of cladding, RAAC could meet that description and so landlords may be required to commission these kinds of surveys.
Landlord and tenant obligations
Where tenants are not responsible for repairing the structure, they are increasingly requesting urgent confirmation from their landlords that RAAC is not present in their building, requiring their landlords to carry out intrusive surveys to give an accurate response.
Conversely, proactive landlords are writing to tenants of FRI leases to highlight the potential problem and ask them immediately to take any necessary remedial action.
There is also an increasing focus on RAAC during the technical due diligence process with buyers requesting written confirmation from owners that RAAC is not present in the building.
Responsibility for repair
Responsibility for repairing RAAC is rarely clear-cut and, in some circumstances, will depend on the mechanisms of failure.
RAAC in a building may be an inherent defect due to errors in design or installation during construction. Similarly, where RAAC planks have been cut to size on site - perhaps because a plank doesn’t quite fit or because a pipe is in the way – its structural performance may be compromised.
RAAC can also fail due to disrepair or a lack of maintenance. A key cause of failure is water causing corrosion of the steel reinforcement. As RAAC planks are commonly used for flat roof decks, water ingress resulting from inadequate waterproofing could give rise to such corrosion.
Similarly, RAAC disrepair can occur where tenants undertake alterations, and cut into the RAAC panels for service routes or overload them with air-conditioning plant.
Recourse through the Building Safety Act
The lease is always the first port of call when considering who is responsible for repairing or replacing RAAC, and who pays. However, leaseholders may be able to compel their landlords to carry out, or pay for, remedial works through the unlikely channel of the BSA, which imposes additional obligations on landlords (and others) to those set out in the lease.
The BSA was introduced following the Grenfell Tower fire tragedy, so was rightly targeted at ensuring fire safety. However, its provisions on “building safety risks” address not only the risk of fire, but also structural failure or the collapse of the whole or part of a building. RAAC could potentially be such a risk.
Remediation and contribution orders
The BSA gives tenants, and anyone with a legal or equitable interest in part of a “relevant building” (i.e. one which is at least 11 metres or 5 storeys high with at least two dwellings) containing “relevant defects” the right to apply to the First Tier Tribunal (FTT) for redress.
Relevant defects arise from anything done (or not done) or used (or not used) in connection with the construction or conversion of a building or any subsequent works to it carried out in the 30 years up to 28 June 2022 which cause a building safety risk – including structural collapse. This could include RAAC used in the construction of a building which now poses a risk of structural collapse, even if that was not originally intended by the draftsperson of the BSA.
The FTT can make a “remediation order” requiring the landlord to carry out specified remedial works or a “remediation contribution order” compelling the developer, current landlord, or whoever was the landlord as at 14 February 2022 – and associated entities – to contribute to the cost of works. The FTT has already exercised its powers, and imposed both types of order on landlords for fire defects.
Where a building contains RAAC which is at risk of collapse – particularly where it is within the roof or structure of the building – landlords may, therefore, be compelled to replace it, or contribute to the cost of doing so.
An extra layer of protection?
We are yet to see whether tenants facing problems with RAAC will seek recourse under the BSA or whether the FTT is willing to deploy its powers under the BSA to compel a landlord to remediate a RAAC issue or contribute to the cost of works.
Many buildings where RAAC is typically found will not fulfil the height criteria or contain dwellings, necessary to be “relevant buildings”. Those buildings will not have the benefit of this protection, which may also limit its use.
Nonetheless, where RAAC is found in a relevant building, the BSA could provide an extra layer of protection for tenants and much more force to an argument that the landlord must, at least, assess and manage the RAAC and potentially remove it entirely.
An earlier version of this article, co-written with Matt Neave, a partner in the building consultancy and lease exit team at Gerald Eve, appeared in EG on 28 November 2023.
Authored by Katie Dunn and Lucy Redman.
