Outside the Building Safety Act, but not off the hook

A tower in Wembley, wrapped in the same combustible ACM cladding that drove the Grenfell fire. Both sides' fire engineers agree it is an "intolerable risk" and must come off. And yet, because the building is a hotel, it sits outside the Building Safety Act 2022, no remediation order, no statutory route to force the work.

If "in scope of the BSA" has become the line between the buildings we worry about and the ones we don't, the Technology and Construction Court, High Court of Justice, has just moved that line.

In Essendi UK Hotels 2 Ltd v London Property Company Ltd, the court ordered the landlord to remediate anyway, not under the BSA, but under the ordinary "good condition" and "legal obligations" covenants in the lease, read with the Fire Safety Order. The order: strip the cladding within six months, re-clad within eighteen, damages to follow. The judge also observed, pointedly, that the parties' fight over who pays did more damage than the defect itself, the avoidable closure costs now fall on one of them.

The takeaway is an encouraging one, really: the obligation to look after these assets was always there, in the covenants and the Fire Safety Order, whether or not a statute happens to name the building. Hotels, offices, sub-18-metre stock - the duty to manage the risk sits with all of them.

It's also a reminder that these questions are technical before they are legal. What the material is, whether the risk is tolerable, when a danger became knowable. Those are building questions, and they reward owners who keep a clear, current picture of their assets and act when they identify challenges.

So for landlords it's worth asking, calmly and ahead of any dispute: do we know what's on our buildings, do we understand what it obliges us to do, and are we managing it on our own terms?

That's the conversation we most enjoy having. At Kingswood, we work alongside owners to make an asset's condition and its latent obligations legible throughout the investment lifecycle, and wherever responsibility needs to be understood.

There's a commercial dividend to getting this right, too. Clarity over a building's condition and its latent obligations isn't only the responsible thing to do as a landlord, it also expedites transactions. A seller who can evidence what's on the asset, what it obliges them to do and how it's being managed removes the uncertainty that stalls deals, narrows price chips and drags out diligence. Surprises in a data room cost time and value; a clean, well-understood asset trades faster and on better terms.