Known as 'bubbly concrete', RAAC or Reinforced Autoclaved Aerated Concrete is a cheaper, weaker and less durable alternative to conventional concrete. Used extensively in the construction of public buildings from the late 1950s to the 1990s, it was popular due to its lighter weight and better thermal insulation properties.

However, due to the nature of the material, RAAC has a much shorter lifespan than alternatives. Experts have warned that after 30 years, buildings constructed using it should be repaired or remediated to remove the RAAC or to reinforce their structure. One key question arising has been who should bear the cost of such works?

Where a public building (such as a school or hospital) is involved, the question of funding is likely to sit with the relevant local authority or public body.

If RAAC is present in a leasehold building, identifying the party with the liability to repair will require a review of the lease.

Generally speaking a tenant with a lease of the whole building will usually be responsible for the repair and maintenance of that building, including the structure. The cost of any works required to remove or reinforce the RAAC would, therefore, fall directly to the tenant. Where a tenant occupies under a lease of part only, the landlord will normally retain responsibility for the repair and maintenance of the structure and common parts. Depending on the wording of any service charge provisions, the cost of such works may be recharged to the tenants. The ability to re-charge costs to residential tenants will be governed by s20 of the Landlord and Tenant Act 1985, which establishes that if the cost of major works exceeds the sum of £250 for any one leaseholder, then the landlord is required to consult with all the leaseholders.

Regardless of whether the lease in question is of the whole or part, to the extent that keeping the building safe is a statutory obligation, health and safety statutes must be complied in order to protect the safety of occupants.

Another question to consider is whether a claim can be brought against a building insurance policy. In instances where damage has occurred, a claim for repair of such damage may be successful. Whether it would be possible to recover the cost of removal of all of the RAAC would depend on the extent of any damage and the terms of the insurance policy. Where no insured damage has occurred, it is unlikely an insurance claim for the removal of any RAAC would be successful.

In some circumstances, there may be scope for a claim against the relevant contractor, sub-contractor or consultant responsible for the design and installation of the RAAC, which might allow a landlord to indirectly access that company's professional indemnity policy even in the absence of damage. In most cases, however, it is very likely that even if negligence could be established, the RAAC will have been installed more than 15 years ago and therefore, any negligence claim will now be statue-barred.      

The remediation route is the one landlords and tenants alike should be striving to achieve in order to secure the health and safety of tenants in buildings where RAAC is present. Those impacted should seek legal advice as early as possible, given the uncertainty around who is liable for the remediation costs, especially where there is a risk of injury for occupants if prompt action is not taken.

For further information, please contact Sue Ryan, Jane Reyersbach or Lia Machado