The recent decision of the Upper Tribunal in Almacantar Centre Point Nominee No 1 Ltd & Anor v Penelope de Valk & Ors [2025] UKUT 298 (LC) has provided more clarifications regarding the Schedule 8 leaseholder protections.
Schedule 8 to the Building Safety Act 2022 ("BSA") sets out provisions that are designed to protect leaseholders, where certain criteria are met, against some or all of the costs associated with remedying building safety defects. Following the First -tier Tribunal ("FtT") and Upper Tribunal ("UT") decisions in many previous cases, the wording of Schedule 8 is taken at face value.
This appeal related to an FtT decision which originally found that a number of the qualifying leaseholders at Centre Point House ("CPH") were afforded protections of Schedule 8 of the BSA, in particular, in relation to "cladding remediation".
On appeal, the UT noted that the protections conferred by Paragraph 8, Schedule 8 operate independently of the concepts of “relevant defects” or “relevant measures”, which permeate Part 5 of the BSA. The UT found these definitions have no application in the context of Paragraph 8. For the protections in Paragraph 8 to be engaged, the lease needs to be qualifying and there needs to be a cladding system that (1) is being removed or replaced, (2) forms the outer wall of an external wall system, and (3) is unsafe.
The upshot of the UT's conclusion that the façade was a cladding system and that it was unsafe is that remedial works to the original façade, installed between 1963 – 1966, and which likely resulted from age or historic building practices rather than defective cladding, were caught by Schedule 8 to the BSA.
This interpretation could leave Landlords stuck with liability for the cost of historical cladding remediation and no obvious route to recovery from third parties. The limitation period for Remediation Contribution Orders ("RCO") and claims under the Defective Premises Act 1972 extends back 30 years to 1992. The UT considers this in paragraph 56 of the decision, concluding that the absence of recourse to RCOs is unproblematic, on the basis that leaseholders are equally disallowed from seeking Remediation Orders in this situation.
There was a further appeal on Ground 5, which related to whether the FtT had correctly determined that certain leaseholders were qualifying leaseholders. This Ground was dismissed as the UT concluded that the issue was not raised in the first instance proceedings nor was it decided by the FtT. The FtT had simply applied the presumption provided for in paragraph 13, Schedule 8 (the "Presumption"). The Presumption states that a lease which satisfies certain grounds must be considered qualifying unless/until the Landlord has taken "all reasonable and all prescribed steps" to obtain the Leaseholder Deed of Certificate ("LHDOC") and no certificate has been provided. The prescribed steps are those set out in Section 6 of the Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022. However, there is currently no guidance as to what constitutes "all reasonable steps", which is crucial for Landlords in assessing the qualifying status of leaseholders.
Given that the UT dismissed Ground 5, we will need to wait for another case for guidance on this issue. Whilst guidance is still awaited in respect of the meaning of "all reasonable steps", this case highlights the importance for Landlords to ensure that they have documented all steps (both prescribed and additional) in seeking LHDOCs from tenants.
