Deck The Halls With Appeal Cases: Does The Building Safety Act Reach Back In Time?

It has been a busy year for the Building Safety Act 2022 ("BSA"), as the courts have explored the limits on liability. Designed to shield leaseholders in high-rise residential/mixed-use buildings from the cost of fixing historic safety defects, the BSA shifts responsibility to developers and those who profited from them. But does its bite reach back in time? Three key appeals in 2026 promise clarity for these questions:

Do service charge protections cover unsafe cladding, no matter how old?

Almacantar Centre Point Nominee No.1 Ltd & Anr v De Valk & Ors [2025] UKUT 298 (LC)

In September 2025, the Upper Tribunal (the "Tribunal") held that a landlord was barred from recovering through service charges the cost of replacing a deteriorating 1960s timber-frame façade on the basis it constituted "cladding remediation" within paragraph 8 of schedule 8 of the BSA. The building in question, Centre Point House near Tottenham Court Road, London, had a hardwood timber-framed window façade and a sealed system with limited ventilation, leading to severe timber decay caused by water ingress. This compromised its structural integrity. The façade was found to be inherently defective from its design and construction in the mid-1960s and not merely out of repair, but unsafe. The landlord proposed remediation works and the tenants challenged the recovery of those costs via service charge based on Schedule 8 of the BSA.

Section 122 and schedule 8 of the BSA contains a framework of protections for leaseholders. Paragraphs 2 – 7 of schedule 8 mitigate the costs for qualifying leaseholders of "relevant measures" taken by the landlord to address "relevant defects" (broadly, this means a building defect arising from works carried out in the 30 year period ending 28 June 2022 which causes a building safety risk). Paragraph 8 provides that qualifying leaseholders do not have to pay service charge for cladding remediation, being the removal or replacement of any part of a cladding system that forms the outer wall of an external wall system and is unsafe.

The landlord's defence was that paragraph 8 must be read in the context of the package of leaseholder protections in schedule 8, where "relevant works" and "relevant defects" are key to its interpretation – accordingly, they argued it should only apply to protect qualifying leaseholders from having to pay for remediating "unsafe cladding" in buildings constructed or worked on after 1992.

However, the Tribunal preferred the leaseholders' interpretation of schedule 8 and decided that paragraph 8 operates independently of the other protections in schedule 8, meaning any unsafe cladding system—regardless of age, hazard type, or when it became unsafe - falls within its scope. The landlord was therefore unable to recover the remediation costs of the 1960's cladding through the service charge. This decision, whilst consistent with the policy of the BSA that qualifying leaseholders would not pay a penny to fix dangerous cladding, rejects the contrary view suggested in the explanatory notes to the BSA. The Court of Appeal in the Adriatic case (see below) considered the use of these explanatory notes in the task of statutory interpretation, but they decided that the notes do not hold any special legal status as they did not exist when the BSA was enacted. Whilst the explanatory notes may show the understanding of the Department for Levelling Up, Housing and Communities, and possibly what it wished the BSA meant, the notes cannot have informed Parliament's decision-making.

Importantly, this judgment exposes a gap in the remediation scheme for unsafe cladding. Whilst it is good news for leaseholders that landlords cannot recover through the service charge their remediation costs for dealing with unsafe cladding installed prior to 1992 (assuming there have not been works carried out after that date which made it unsafe), leaseholders cannot apply for a remediation order to compel their landlord to do those works, as the legal test for imposing a remediation order uses the definition of a relevant defect which applies the 30-year limitation period ending June 2022. Leaseholders would have to consider what other avenues exist to enforce remediation works, such as the landlord's covenants in the lease. It also means that a landlord will not be able to apply for a remediation contribution order to recover costs from developers or their associates for the defect, as they also use the 30-year limitation period.

The Court of Appeal is due to hear the landlord's appeal by 13 October 2026.

Does the BSA shield leaseholders from pre-2022 costs?

Adriatic Land 5 Limited v Long Leaseholders of Hippersley Point [2025] EWCA Civ 856

In July 2025, the Court of Appeal decided that paragraph 9 of schedule 8 of the BSA applied retrospectively to prevent a landlord from recovering from its tenants costs which had been incurred before the BSA came into force. Paragraph 9 prohibits recovery from qualifying leaseholders, via a service charge, of costs for legal or professional services relating to liability for relevant defects.

Adriatic, the landlord of a high-rise residential building called Hippersley Point in Abbey Wood, London, needed to carry out urgent fire safety remediation works. The leases required the tenants to pay for the costs of works via the service charge, but recovery was subject to statutory protections under the Landlord and Tenant Act 1985, which includes an obligation on the landlord to consult with the tenants before undertaking any works. The landlord applied to the First-tier Tribunal for dispensation from the statutory consultation, which was granted subject to a condition that the landlord could not recover its legal costs of that process from the tenants via the service charge. The landlord appealed this condition, but the BSA came into force during those proceedings.

By a majority in the Court of Appeal, they confirmed that the schedule 8 protections applied from 28 June 2022 (the date they came into force) even to costs incurred before that date, provided those had not yet been paid. Any sums already paid by tenants before 28 June 2022 did not need to be refunded by landlords – arbitrarily punishing prompt-paying tenants and rewarding those who were tardy with settling their service charge bill. However, this interpretation reinforced the purpose of the BSA: leaseholders should be shielded from bearing the financial burden of remedying historic building safety defects and landlords are banned from pursuing service charges for these costs after 28 June 2022.

Permission to appeal to the Supreme Court has been granted, although we await news of the hearing date. For more information on the Court of Appeal's judgment, see our blog post here.

Are developers liable for remediation costs incurred pre-2022?

Triathlon Homes LLP v Stratford Village Development Partnership [2025] EWCA Civ 846

Also in July 2025, the Court of Appeal handed down its judgment in this case. Triathlon, a long leaseholder of social housing blocks at the former Olympic Village site, secured remediation contribution orders ("RCOs") in March 2024 against Stratford Village Development Partnership, the original developer, and Get Living PLC, an associated entity which acquired its interest in the development after construction. The First-tier Tribunal found it just and equitable for these parties to contribute substantially to the cost of major fire safety remedial works. SVDP and Get Living appealed, and the case leapfrogged to the Court of Appeal.

The appeal raised two key issues:

• Whether it was just and equitable to make the RCOs.
• Whether the RCOs could cover costs incurred before the BSA came into force

On the second issue, the Court of Appeal confirmed that the legislation has retrospective effect. Costs incurred before the BSA's commencement can be included in RCOs, ensuring developers and associated entities, rather than leaseholders or the public purse, bear the cost of remedying historic building safety defects. For more information on the Court of Appeal's judgment on the first issue, see our blog post here.

Permission to appeal to the Supreme Court on the second issue (retrospectivity) has been granted, although we await news of the hearing date.

What else will 2026 bring?

The court and tribunal decisions in relation to the BSA over the past few years have shared a policy-driven approach, consistently favouring applicants/leaseholders and expanding the scope of liability for landlords, developers and those who profited from buildings with safety defects. The trend indicates growing financial exposure for these parties and their corporate affiliates.

We expect to see the High Court imposing more building liability orders in 2026 to move financial liability to associated companies of the original developer company, particularly where the original developer company has been dissolved or has no assets. With the judiciary actively testing the boundaries of service charge protections, RCOs and building liability orders, due diligence is critical before acquiring or investing in potentially affected properties or corporate structures. For further reading on this prediction, please see our Forearmed 2026 briefing.

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