Part 5: Other provisions about safety standards, etc. Remediation of Certain defects Section 123 – Remediation orders Background
As discussed in the explanatory note to section 116, flats in most multi-occupied residential buildings in England are owned on long leases. The building itself and the land on which it is located are owned by a freeholder, and the flats within the building are owned on long leases by the leaseholders. The freeholder is responsible for the maintenance and upkeep of the building and the terms of most leases allow the costs associated with the building’s maintenance and upkeep to be passed through the service charge to leaseholders.
	Significant decision-making power rests with the landlord responsible for maintaining the building in determining whether a building should be remediated, and the extent of work that is to be commissioned. Where leaseholders have been liable in full for these costs this has at times resulted in some landlords taking an overly risk-averse approach and commissioning costly remediation which may not be needed. At the same time, some landlords have been slow to commission and undertake even life-safety critical work on buildings, even where the Government is providing funding for the work.
	Schedule 8 makes changes to the preexisting legal position that leaseholders are liable in full for these costs by limiting the costs that can be passed through the service charge in respect of relevant defects. Landlords will now be liable for some or all these costs. It is expected that this change will reduce instances of the commissioning of unnecessary work as landlords will now be disincentivised from taking an overly risk-averse approach to remediation, due to being liable to at least part-fund the work themselves.
	Remediation orders will ensure that essential remediation work needed to remedy relevant defects can take place, especially where landlords are not fulfilling their obligations as regards the safety of the building. Remediation orders will allow interested parties to apply to the First-tier Tribunal for an order requiring a relevant landlord to remedy specified relevant defects. This will redress the balance of power in favour of leaseholders by allowing leaseholders and other interested parties to apply to the Tribunal to insist on remediation work being done.
	Parties with the ability to apply for remediation orders are those with a regulatory or oversight function – the Building Safety Regulator, the relevant local authority, and the relevant fire and rescue service; and those with a direct interest in the building, including leaseholders.