An application has been made as part of the long-running litigation at Canary Riverside for a determination under section 75 of the Building Safety Act 2022 (BSA) as to who is, or are, the Accountable Persons under the BSA.
In Octagon Overseas Limited (Octagon) and others v Mr Sol Unsdorfer (1) Circus Apartments Limited (2) and Leaseholder represented by the Residents Association of Canary Riverside (3), Octagon was the freehold owner and the landlord of five higher-risk buildings in the development. Mr Sol Unsdorfer was the tribunal-appointed manager of the Estate. Circus Apartments Limited (CAL) was the long lessee of building 5.
Section 72(1) of the BSA 2022 defines an 'accountable person' (AP) for a higher-risk building as:
(a) A person who holds a legal estate in possession in any part of the common parts, or
(b) A person who does not hold a legal estate in any part of the building but who is under a relevant repairing obligation in relation to any part of the common parts.
It was agreed that since Mr Unsdorfer did not hold a legal estate in any part of the buildings, he could only be an AP if he was under a relevant repairing obligation in relation to the common parts.
He was clearly under a repairing obligation by virtue of the terms of the Management Order of his appointment, but the question was whether he was under a 'relevant' repairing obligation as defined in Section 72(6). Under this definition he would need to be required under a lease, or by virtue of an enactment, to repair or maintain any of the common parts.
Under the first limb, the question was whether a section 24 manager, directed in a management order to carry out repairing obligations as set out in a lease, carried out those obligations both under the order and the lease itself. The tribunal said not and agreed with the landlords that Mr Unsdorfer had no obligations under the lease: his duties derived instead solely from the management order.
Under the second limb, the question for the tribunal was whether the words “by virtue of an enactment” refer solely to a direct requirement imposed by legislation or whether they can also include obligations imposed under an order that is itself made under an enactment. The tribunal did not consider this question to be without ambiguity but concluded that it required specific provision made in legislation. No primary or secondary legislation obliged Mr Unsdorfer to repair or maintain any of the common parts, and as such he was not required to do so by virtue of any enactment.
The Tribunal found support for such an interpretation (that managers under section 24 LTA 1987 are not to deal with building safety matters) in the wider building safety regime, especially Part 4 and the Special Measures Manager regime.
The Tribunal therefore concluded that a manager appointed under section 24 LTA 1987 to carry out repairing obligations in a lease is not an AP for the purposes of the BSA 2022, and so not responsible for the building safety requirements under that Act which would fall to someone properly coming within the definition at Section 72(1) of the BSA 2022.
