As Louise has mentioned in her article, there is an obvious focus for both landlord and tenants on the ability to charge tenants for the recovery of building safety costs (either for remediation projects or ongoing costs) via the service charge, however, it is often necessary to consider some other practical matters which might arise for landlord and tenants relating to building safety.

One of the key issues that we are seeing in practice is that there is a need for the parties to work co-operatively in order for investigatory and/or remediation works to be undertaken. This is not always possible, particularly where there are many leases in a block and, as such, it is necessary to look at what (if any) provisions may be within the lease which may assist.

It is always important to remember that the lease remains the contractual document governing the relationship between the parties. The statutory regime then sits on top of that underlying contractual document.

So, for example, if a landlord requires access to premises to undertake works, and that is resisted by a tenant, it would be necessary to review the lease and assess whether there are any provisions in the lease which would allow the landlord to access and undertake the works. Careful consideration needs to be given to the wording of such provisions as they may only allow access for "repair" and, in some cases, surveys and remediation works would not fall within the definition of "repair" and the drafting may not be wide enough where the works will require more than mere access i.e. placing scaffolding on a balcony. 

It may be that the tenant has covenanted in the lease to comply with all statutory obligations and, in some cases, specifically health and safety and fire legislation, and this can sometimes be utilised to require the tenant to provide access to the landlord to undertake the necessary works.

The exercise of any such rights should be carefully balanced with the landlord's implied covenant to ensure quiet enjoyment of the premises and not to derogate from grant. 

In due course, Section 30C of the Landlord and Tenant Act 1985 (inserted by Section 112(2) of the BSA) is intended to deal with some of these issues. The new Section 30C will imply covenants by both landlords and tenants of higher risk buildings to co-operate and for the tenant to allow access to the landlord to carry out works which comply with building safety duties (including alterations, improvements and installations). However, Section 30C is not yet in force with no date set for its commencement.

Whilst ideally the parties will work within the spirit of the BSA in order to remedy and protect the ongoing safety of their buildings, if this is not possible, until such time as these provisions come into force, it will still be necessary to carefully review the lease to assess what can and cannot be done.