Legal Considerations for Hotels: Building Safety

Rachel Kerr: So, I've touched on hotels not currently being included in the definition of high-risk buildings in the Building Safety Legislation, but in what ways could they end up falling in that definition?

Gemma Whittaker: Hotels are expressly excluded from the definition of high-risk buildings under the legislation. But where hotels are part of a wider mixed-use building, they could quite easily fall within a wider, higher risk building. So, where you've got a building that meets the height threshold of 18 metres or seven storeys and contains residential units or serviced apartment accommodation, then a hotel that forms part of that building could very easily form part of a higher risk building.

The implications of that are slightly different depending on whether you're looking at design and construction of a new building or whether you're looking at the occupation of an existing building or once a building comes to completion. So, for, the building of a new building, if a hotel is part of a wider higher-risk building (HRB), the whole of that work will need to go through the Building Safety Regulators gateway process and all of the associated requirements that sit alongside that in the HRB design and construction legislation.

For existing buildings, or once construction is complete, if the hotel is deemed to be part of the higher risk building, for the occupation phase, then there are various occupation phase duties that are applied in relation to the management of building safety risks during the occupation of that building.

Those duties are placed on the accountable person and principle accountable person for the building. So, hotel owners and operators need to know who those entities are, whether they are one of them. And then make sure that those duties are being complied with. There are some quite detailed statutory provisions that in some scenarios, would allow a hotel to be carved out from the definition of a higher risk building only during the occupation phase.

And that depends on whether the hotel is classed as its own independent section. That will depend on access and exit routes primarily. But it's really important then to make sure that you know how those elements of the legislation apply to any particular case and not just assume that hotel might be carved out of the wider building for that occupation phase.

Rachel: I think that's really important. Isn't that? Don't assume you're buying; you're developing a hotel. So, it's outside of high-risk building.

Gemma: That's right. Make sure you look at the wider piece and the wider development to make sure that that assumption is correct and that you're applying the legislation correctly to understand any carve outs.

Rachel: Okay, sort of putting that in context, why do you think the legislation carved out hotels from the high-risk building definition?

Gemma: Rationale for carving out hotels in the first place was really around the fact that it's assumed that hotels will have more robust fire safety measures in place in the first place. So, for example, they might have 24/7 staffing, which might help to mitigate against some of those risks that might be present in residential high-rise buildings.

Rachel: And that's interesting, isn't it? Because actually, when you look at the legislation and Government advice, they're saying that serviced apartments don't count as hotels and therefore are included in the legislation, which would catch HRBs.

Gemma: That's right. So, there is a bit of a grey area there in terms of serviced apartments, the Government has made clear that they do not consider them falling within the hotel's exemption. So serviced apartments are classed as residential units for the purposes of deciding whether you've got an HRB. So serviced apartments that meet the height threshold would be an HRB for both construction and occupation.

Rachel: It's the same point there Gemma really, just don't assume that what you've got is simple when it comes to building safety.

Gemma: Exactly right. And there's actually no clear definition of service accommodation or serviced apartments. So, you know, it's worth really looking at and analysing what that building is made up of before you jump to the conclusion that you can benefit from an exclusion.

Rachel: And I think touching on that, we need to be careful that building safety legislation goes beyond just this concept of high-risk buildings. It's actually quite wide ranging. Bearing that in mind, what wider building safety implications do hotel developers, owners, occupiers need to be looking out for?

Gemma: We've talked a lot about higher risk buildings, and a lot of the focus of building safety legislation is on those high-risk buildings that fall within that category. But it's really important to be aware that it's not limited to that. So, for example, when you're carrying out works of any type which the building regulations apply to, regardless of whether it's residential, hotel, industrial, if you are carrying out works, there are new requirements within the building regulations which require a greater focus on competence of the people that you were appointing to do the design and the construction work, and also place duties on the client, as well as the design and construction team to be managing that project so that it ensures compliance with building regulations. So, anyone procuring works, in the hotel sector needs to make sure they're aware of that. And make sure that their procurement processes and project management processes really account for those new, more stringent requirements and place a great focus on building regulations compliance when that work is complete.

Rachel: Okay.

Gemma: The other piece to remember in relation to management of a hotel is that just because a hotel isn't covered or might not be covered by the more stringent aspects of the Building Safety Act, doesn't mean that there aren't wider health and safety and fire protection regulations and legislation that apply. You know, there are still a range of duties that are placed on hotel owners and operators to be managing fire risks.

So, for example, the Fire Safety Order has been on the statute books since 2005. It requires, the responsible person to be taking measures to reduce the risk of fire, ensure that there are adequate escape means and also making sure that they're carrying out suitable sufficient risk assessments of those properties. And those are things that have existed all along but now sit alongside the Building Safety Act and its associated legislation.

Rachel: And perhaps in greater focus because of everything that sort of led up to legislation. And it's probably worth reminding everyone here that you were a construction lawyer. So, your clients or clients will be looking at and carrying out these sorts of fire risk assessments and everything, and inevitably that will come up with some, some defects, you know, with your construction hat on, what would you say people need to be, mindful of in terms of defects?

Gemma: I think hotels fall into the category of buildings where we know, unfortunately, there are certain building safety defects that were endemic in the construction industry for a period of time. And steps are being taken to put that right now. But anyone who owns or might be acquiring a hotel does need to be looking at that quite carefully, making sure they understand what that building is made up of.

Doing a proper survey and assessment of what the fire and structural risks might be in relation to that building and if issues are identified, what they need to be doing to fix or mitigate those issues. We've got many clients who, as you say, are identifying defects in their buildings now. And, you know, a real close focus is being paid to well what remedies might they have?

Obviously, they need to remediate and make safe those buildings. But to the extent they have to spend money doing that, what remedies might they have? So, what warranties or signed contracts might they have had when they acquired the building, for example. And really important point is looking at limitations. So, making sure that if you think there might be an issue with your building, really getting all of that information together and taking some advice to make sure if you're nearing any kind of limitation period, you're taking whatever steps you can to preserve your rights.

We've certainly come across a number of issues where, limitation issues might have been missed because a bit of time has been taken to look into those types of issues. So, that's a really important point to be aware of.

Rachel: And is it safe to say that in the sort of assets that we look at, cladding is one of the big issues? So, we've talked a lot about assumptions haven't we, don't assume I think you're looking at a hotel that cladding is okay.

Gemma: That's right, and it's not just cladding. There's lots of other issues around, it might be deeper into the building. And you should really be taking appropriate technical advice to make sure that those things have been looked into.

Rachel: That seems like a great point to end on, not least because it's a useful reminder that building safety is relevant to all assets in different ways, including hotels. And hopefully you'll agree it'll be exciting to see the next topic of discussion for our next episode of Legal Considerations for Hotel series. Thank you, Gemma.