Four years on, the law is still developing. What have the courts decided, what has changed in 2026, and what should property owners know before buying, selling or managing a building?

You have found a buyer for your flat. The mortgage arrangements are progressing, the parties are discussing completion dates and everything appears to be moving in the right direction.

Then somebody asks for a landlord’s certificate, information about the building’s cladding or confirmation of who will pay for proposed remediation works.

Suddenly, a relatively straightforward sale becomes considerably more complicated.

For landlords, the questions can be just as difficult. Who is responsible for carrying out the works? Can the costs be recovered through the service charge? And what happens if the defects were caused by a developer many years ago?

These are precisely the issues that the Building Safety Act 2022 (“BSA”) continues to raise.

Four years after receiving Royal Assent, the legislation is no longer new. However, its practical application continues to develop, and several important court decisions during 2025 and 2026 have demonstrated that the answers are not always what might be expected.

The legislation affects more than the remediation of dangerous cladding. It can influence the ownership, financing, management, purchase and sale of residential and mixed-use property.

So, where do we stand as 2026 draws to a close?

Does the Building Safety Act apply to my property?

One of the most common misconceptions is that the BSA only applies to residential buildings over 18 metres tall.

That is not quite right. The Act establishes different rules for different categories of buildings.

For example, the ongoing management regime for higher-risk buildings generally applies to residential buildings in England which are at least 18 metres tall or have at least seven storeys, and contain at least two residential units.

However, the provisions concerning historic building defects and leaseholder protections can apply to relevant buildings, which generally include residential buildings at least 11 metres tall or with at least five storeys, subject to the statutory requirements.

A building may therefore fall within the leaseholder protection regime without being classified as a higher-risk building.

Who actually pays for building safety works?

For leaseholders, this remains one of the biggest concerns.

The BSA introduced protections intended to prevent qualifying leaseholders from bearing certain costs associated with historic building safety defects. Under the BSA, qualifying leaseholders are generally protected against service charges for cladding remediation. Other provisions may restrict or prohibit charges relating to certain non-cladding defects.

However, the protections are not identical in every case. Whether they apply depends on the building, the lease, the nature of the defect and the circumstances of the relevant landlord (all very fact specific)

Broadly, a qualifying lease is a long residential lease granted before 14 February 2022, under which the leaseholder is liable to pay a service charge and which satisfies certain conditions concerning the leaseholder’s occupation or ownership of other properties at that date.

An important point for purchasers is that the qualifying status of the lease generally continues when it is assigned. In other words, buying a flat after February 2022 does not necessarily mean losing the protections available to the previous owner.

What if the cladding is more than 30 years old?

This has become a particularly interesting question.

In Almacantar Centre Point Nominee No. 1 Ltd v De Valk [2025] UKUT 298 (LC), the Upper Tribunal considered whether qualifying leaseholders could be protected against cladding remediation costs where the original façade had been installed during the 1960s.

The BSA ordinarily defines a “relevant defect” by reference to works undertaken within a statutory 30-year period.

However, the Tribunal concluded that the separate protection against cladding remediation charges under paragraph 8 of Schedule 8 was not confined to defects arising within that period. The interpretation potentially extends protection to qualifying leaseholders in considerably older buildings.

The Court of Appeal heard the appeal in October 2026, and its judgment is awaited.

For landlords and leaseholders, the eventual outcome may be significant. It could affect whether substantial sums can be recovered through the service charge, particularly in buildings where the original external wall system is many decades old.

Can the Building Safety Act stop me selling my flat?

The BSA does not generally prohibit the sale of an affected flat.

However, building safety issues can make a transaction substantially more difficult, and can “scare off” buyer unless you have your ducks in a row.  A buyer will want to understand whether the building has known defects, whether works are planned or underway, who will pay for those works and whether the relevant leaseholder protections apply.

This is where two documents become particularly important.

A leaseholder deed of certificate provides evidence relevant to determining whether the lease benefits from the statutory protections.

A landlord’s certificate provides information about the relevant landlord and the circumstances affecting the recovery of certain remediation costs.

These documents serve different purposes, and both may be relevant to a transaction.

A landlord is required to provide a certificate in specified circumstances, including generally within four weeks of receiving notification of an intended sale or a request from a leaseholder. Failure to comply with the certificate requirements may also affect the landlord’s ability to recover certain remediation costs.

Unfortunately, obtaining the necessary information can sometimes be difficult, particularly where there are several landlords, managing agents or other parties involved. For purchasers and sellers, the best approach is to establish what documentation is available at an early stage.

An EWS1 form may also be requested in appropriate circumstances, but it is important to distinguish this from the BSA’s statutory certificates. An EWS1 form is used for valuation purposes and is not itself proof of compliance with the Act.

Nor does the existence of statutory leaseholder protection automatically mean that every mortgage lender will be satisfied.

The key point is that building safety enquiries should begin early in a transaction, not when the parties are already preparing to exchange contracts.

What should existing freeholders and landlords be concerned about?

The legislation has understandably attracted considerable attention because of the protections it provides to leaseholders.

However, existing freeholders, intermediate landlords, resident management companies and property investors also face important questions.

One of the first is identifying who is legally responsible for undertaking remediation works. That will not necessarily be the freeholder. Depending on the leases and management arrangements, responsibility may lie with an intermediate landlord, a management company or another party.

Another important question is whether the cost of those works can lawfully be recovered from leaseholders. The fact that a lease contains a service-charge provision does not necessarily mean that the landlord can recover every category of building safety expenditure.

This issue arose in Adriatic Land 5 Ltd v Long Leaseholders at Hippersley Point [2025] EWCA Civ 856.

The Court of Appeal considered whether certain legal and professional costs incurred before the relevant provisions of the BSA came into force could still be recovered from qualifying leaseholders.

The majority concluded that the statutory protection could prevent recovery of amounts which remained unpaid after commencement, even where the expenditure had been incurred earlier.

The Supreme Court is due to hear the appeal on 18 November 2026.

The case highlights the importance of examining historic expenditure and existing service-charge liabilities rather than assuming that costs incurred before the legislation commenced are necessarily recoverable.

What if someone else caused the defects?

The BSA also provides mechanisms through which remediation costs may be recovered from other parties.

For example, remediation contribution orders can require certain developers, landlords and associated companies to contribute towards the cost of addressing relevant defects where the statutory requirements are satisfied.

The Court of Appeal considered these powers in Triathlon Homes LLP v Stratford Village Development Partnership [2025] EWCA Civ 846.

The Court upheld orders against the original developer and an associated company, including a conclusion that the legislation could apply to certain expenditure incurred before the relevant provisions came into force.

The Supreme Court is due to consider that retrospectivity issue on 19 November 2026.

For existing landlords facing substantial remediation costs, these powers may offer an important route to obtaining a contribution from parties connected with the development. They may also be relevant to prospective purchasers acquiring freehold investments or property portfolios. Understanding a building’s ownership and development history can therefore be just as important as understanding its current physical condition.

What about commercial landlords?

Although the BSA’s principal leaseholder protections concern residential buildings, building safety issues can also create substantial obligations in commercial property.

A useful example arose in Essendi UK Hotels 2 Ltd v London Property Company Ltd [2026] EWHC 1354 (TCC).

The High Court considered responsibility for dangerous cladding at the Ibis London Wembley hotel. Unlike the residential cases, the dispute turned on the terms of a commercial lease rather than the BSA’s residential leaseholder protections. The Court found that the landlord was responsible for removing and replacing the dangerous cladding.

The case demonstrates why repairing obligations, statutory compliance provisions and the allocation of responsibility within a commercial lease should be considered carefully. The absence of liability under one part of the BSA does not necessarily mean that a building owner has no obligations concerning dangerous materials or defects.

What changed in 2026, and what happens next?

There have been several important regulatory developments.

In January 2026, the Building Safety Regulator became a standalone organisation, separating from the Health and Safety Executive.

In July, the regulator announced a more targeted, risk-based approach to its Building Assessment Certificate process. Although the approach to assessing applications has changed, the underlying statutory obligations on those responsible for managing higher-risk buildings remain.

The Building Safety Levy also came into force in England on 1 October 2026. The levy applies to qualifying new residential developments and is intended to contribute towards the cost of remediating historic building safety defects. For property transactions, its significance is that outstanding levy liabilities may prevent the issue of necessary building control completion documentation, potentially affecting completion and occupation.

Further changes are proposed.

The government introduced the Building Safety (Remediation of Unsafe Cladding etc) Bill in October 2026, with measures intended to accelerate remediation and strengthen accountability.

The proposals include additional duties for certain building owners and responsible entities, improved information about building ownership and enhanced enforcement powers. These measures remain subject to Parliament and are not yet operative law.

Together with the forthcoming appellate judgments, they demonstrate that building safety remains an evolving area of property law.

What should buyers, sellers and landlords do now?

There is no single answer that applies to every building.

For someone selling a flat, the immediate priority should be establishing whether the relevant building safety documentation is available and whether there are outstanding matters likely to concern a buyer or their lender.

For a purchaser, the questions concern the building’s condition, the protections attaching to the lease, potential future expenditure and whether the available information provides sufficient certainty to proceed.

For landlords and property investors, the issues are broader. They include repairing obligations, service-charge recovery, statutory compliance, outstanding remediation works and possible contributions from developers or other responsible parties.

In each case, early investigation can make a considerable difference.

One of the practical difficulties with the BSA is that several different legal regimes can apply to the same building, and the information needed to establish the position may be held by several different organisations.

The developing case law has also demonstrated that seemingly straightforward assumptions about building height, the age of defects and responsibility for costs may not always be correct.

As a property solicitor, I am particularly interested in how those legal questions translate into the practical realities of ownership and transactions. The important questions are not simply whether the legislation applies, but what it means for the person buying, selling, financing or managing the property.

Four years on, the Building Safety Act is no longer just a question of construction and remediation. It is an increasingly important part of everyday property ownership and conveyancing. And with further decisions and legislative changes expected, the importance of identifying and resolving these issues early is unlikely to diminish.

Need advice about a property affected by the Building Safety Act?

Charlie Davidson is a Senior Associate in Edwin Coe’s Property team, advising on residential and commercial property transactions, including complex leasehold, mixed-use and investment property matters.

If you are buying or selling a flat, acquiring a freehold investment or dealing with building safety issues affecting a property you own or manage, contact Charlie Davidson to discuss the position.

This article reflects the position in England as at 2 November 2026 and is intended for general information only. It does not constitute legal advice. Certain court decisions remain subject to appeal, and proposed legislative reforms have not yet become law.