Permission to appeal to the Upper Tribunal (Lands Chamber) granted on the working of regulation 3 of the Building Safety (Leaseholder Protections) (Information) Regulations 2022. 19 March 2026
Regulation 3 (along with regulations 4 and 5) is a new provision arising out of the Building Safety Act 2022 Part 5. The Regulations allow, in certain circumstances, a landlord doing remediation works for which but for the provisions of schedule 8 of the Act service charges would be payable, to recover the costs of those works from other landlords. For regulation 3, the landlord who can be made liable is the "responsible landlord”, that is the landlord as of 14 February 2022 who was the developer, or an associate of the developer, or a successor in title of a responsible landlord. The liability if it arises is strict. There are limited rights of appeal to the First-tier Tribunal.
Stratford Village Property Holdings 1 Limited & Anr v East Village Management Limited (LON/ooBB/BSD/2024/0601 and BSA/2025/0002 and 0003) heard by the First-tier Tribunal (Property Chamber) in November 2025 is three joined appeals under regulation 3 covering a number of issues of interest in relation to this technical new legislation: whether, as the Appellants below said (1) issues about whether the regulation applies at all can be determined on an appeal to the FTT rather than requiring a court claim; (2) the “but for” requirement as to service charge payability is defeated by non-payability for other reasons (in this case the provisions of the BSF grant funding agreement) can result in regulation 3(1) not applying; (3) the landlord must be liable to the pay in the sense that the liability isn’t contingent for regulation 3 to apply; (4) costs for which the landlord was liable or paid prior to the Regulations coming into force can be the subject of regulation 3 liability.
By a decision dated 16 January 2026 and corrected on 29 January 2026, Judges S McGrath (the President of the First-tier Tribunal (Property Chamber)) and A Sheftel concluded that (1) such issues can be determined by the Tribunal on an appeal; (2) the but for test only requires that a service charge would have been payable under the terms of the lease (so that the regulation 3 liability is not, for example, limited by statutory reasonableness); (3) the landlord must be liable to pay without any contingency; (4) regulation 3 is retrospective. On 13 March 2026 it gave the Appellants before them permission to appeal the decisions in (2) and (4) (the two points decided against them). The grounds of appeal raise human rights issues. To date the Upper Tribunal has not considered the detailed workings of the Regulations (though they are discussed in Triathlon LLP v SVDP [2025] EWCA 846).
Cecily Crampin appeared for the Appellants below as sole counsel. With Douglas Maxwell, she settled the grounds of appeal for the permission application. They are instructed by Jones Day.
Download: Permission to appeal to the Upper Tribunal (Lands Chamber) granted on the working of regulation 3 of the Building Safety (Leaseholder Protections) (Information) Regulations 2022.
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