Danielle Klepping
Principal Associate
Article
In this article, we explore how the impact that has had on the role of property managers and how expectations of property managers have changed over the last two years as a result of the BSA and considers what we might expect to see around this area of compliance moving forwards.
Under the BSA, the responsibility for keeping the building safe during the occupation phase falls to the "accountable person" or, if there is more than one accountable person, to the "principal accountable person". Working out who falls into these roles can be complicated as it will often require a detailed analysis of how the relevant building is owned, especially if that ownership structure is multi layered.
Two years down the track, it is now largely accepted that a property manager is unlikely to fit that criteria and that it is rare for a property manager to have direct responsibilities under the BSA (noting there can, of course, be exceptions especially for asset classes such as student housing where property managers are more likely to take on a lease).
In a typical property management agreement, where the property manager is appointed as agent for the freehold owner or the head tenant, the property manager will not usually have sufficient responsibility for repairs and as such will not usually be an accountable person. The property manager is typically managing the repairs on behalf of the landlord, and therefore the landlord retains the ultimate responsibility for the repair.
As we anticipated, owners and investors that are principal accountable persons or accountable persons for HRBs are increasingly seeking support with compliance with their occupation regime duties and that usually starts with a call to their property manager.
Property managers already support with identifying risks such as health and safety, overseeing and managing repairs and maintenance, operating the service charge, carrying out (or appointing third party specialists to carry out) various surveys, keeping records and generally supporting the owner in fulfilling its leasehold and legislative commitments. As such, many owners are expecting their property manager to assist with building safety.
Whilst there is still no firm market position yet, there have been a significant shift and steps towards providing varying levels of support by property managers (especially those within the Build to Rent sector).
Most property managers have recognised that, in order to remain competitive, it is important to be able to offer at least some level of assistance.
Variety!
Whilst some property managers will now be comfortable with supporting with all (or the majority of) the occupation regime requirements, others will only be comfortable providing limited support, e.g. a draft resident engagement strategy or supporting with the appointment of a specialist to prepare or review a safety case report.
Fees for that support will also vary – for new management agreements it might be included within a wider management fee or there might be a specific fee. As always it will be important to think about what the fee covers (and to have eyes open to third party costs as well as costs imposed by the Building Safety Regulator itself).
Property managers will find it increasingly difficult to resist supporting with building safety compliance. Looking ahead they can expect to see:
If you have any questions about this article, please get in touch with Danielle Klepping, Gemma Whittaker or David Lowe.
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