UK Building Safety - Watch your back: here comes RAAC

Hogan Lovells

Hogan Lovells

In back to school week, the presence of reinforced autoclaved aerated concrete (RAAC) in over 150 school buildings, posing a risk of collapse, dominated the headlines. However, the prevalence of RAAC in all kinds of local public buildings – from court buildings to hospitals - is becoming more apparent, with schools now looking like the tip of the iceberg. The widespread use of RAAC means that may also impact on private sector property owners who may want to consider checking their properties for the presence of RAAC – especially large scale buildings, such as shopping centres and offices, built before the turn of the millennium by local authority developers.

What is RAAC and why is it a problem?

RAAC is a lighter form of concrete, which was used widely in the UK from the 1950s to the 1990s, particularly (but not exclusively) in government and local authority buildings, and for flat roof structures.

Not all RAAC is problematic – if it is appropriately designed and made, and properly maintained, it can still be a useful construction material.

However, RAAC has a life span of 40 to 50 years after which it starts to crumble. This means that RAAC installed from the 1950s to the 1970s may now have reached the end of its life, and the buildings which contain it could be at risk of collapse. Given the post war building boom in the UK, a large number of buildings will potentially be affected.

In September 2022, the government sent a notice to property owners stating that “RAAC is now life-expired and liable to collapse”, and the issue is now coming to a head.

RAAC now looks set to be treated as a building defect, like asbestos or ACM cladding, which raises the question of who will be responsible for removing and replacing it, and who will foot the bill.

Extension of the Defective Premises Act

The Defective Premises Act 1972 (the DPA) requires anyone constructing a “dwelling” (including third party contractors) to do so in a workmanlike manner using proper materials so that it is fit for habitation.

The Building Safety Act 2022 (the BSA) extended the limitation period for claims under the DPA from 6 years to 30 years for buildings completed before 28 June 2022, or 15 years for buildings completed after that date.

This means that developers of buildings constructed as long ago as 1993 could face claims under the DPA, and those who have acquired buildings completed in that period could have a route to recover the costs of RAAC removal and replacement.

While the DPA only applies to “dwellings”, the BSA also amended the DPA so that it applies to buildings “consisting of or containing” one or more dwellings. This extends it to buildings which, while not primarily residential, contain at least one residential unit – for example, staff accommodation or flats above a shopping centre.

Effect on service charge

The landlord’s responsibilities for maintenance and repair of buildings, and the extent to which they can pass the costs incurred through to tenants, will vary depending on the terms of the lease.

Generally speaking, the landlord will be responsible for maintaining the structure and fabric of the building, and can pass the cost of doing so through to tenants.

This could mean that a landlord could pass the cost of rectifying RAAC within a building onto tenants.  However, many leases attempt to exclude tenant liability for latent defects, i.e. one that existed but was not detectable at the time of construction, or require the landlord to pursue third parties to rectify those issues.  This could protect tenants from having to pay for those repairs, and force landlords to seek recourse elsewhere.

As RAAC can be a safe construction material – albeit one requiring maintenance, and with a limited shelf life - the use of RAAC in a building may not be considered a latent defect, and may just fall within the normal maintenance and repair obligations under the lease and so fall within the service charge, helping landlords to fund those works but leaving tenants exposed.

The BSA introduced legislation preventing landlords from passing on the cost of remedial works for some fire safety defects onto certain tenants. It is not yet clear whether the government would consider introducing similar legislation to offer the same protections in terms of RAAC. That may depend upon the scale of the problem, as and when it can be ascertained.  Even if such protections were introduced, they would likely be limited to residential leaseholders only.

Next steps

Responsible property owners will be keen to survey their portfolio and identify any buildings containing RAAC and make sure they have an appropriate maintenance and replacement programme in place.

This is a high-level guide for the key issues to look out for; anyone who is concerned about the presence of RAAC in a building that they own or occupy should seek professional advice on their rights and liabilities as well as the available options for resolving the issue.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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