The building is under 11 metres — where does that leave me?

I have been told the building is under 11 metres

It means the statutory regime is pointed somewhere else, and that cuts both ways. The leaseholder protections apply to buildings of at least 11 metres or five storeys, so below that threshold they do not engage — which also means the building is outside the part of the market lenders have been most anxious about. The thing to establish is who says it is under 11 metres, and on what basis.

From the e-ROT archive

This scenario is drawn from Report on Title material dealing with this specific circumstance.

Lexsure Report on Title paragraph: Building Safety Act 2022 - Building Under 11 Metres · See the wording

Who actually measured it

Usually nobody. The statement that a building is under 11 metres generally comes from the estate agent, the seller, the managing agent or a housing association, and is passed on with that attribution. Your conveyancer will not have visited the building, and will say so.

That is worth knowing because the threshold is binary and the building may be close to it. Five storeys or 11 metres, whichever is reached first, is a test with a right answer — and a confident assurance from somebody with no measuring equipment is not the same as that answer.

What falling below the threshold does and does not settle

It takes the building outside the statutory leaseholder protections, so the caps and the certificate regime do not apply. Where there is nothing wrong with the building, that is unimportant. Where something is found, there is no statutory ceiling on what can be charged.

It also tends to place the building outside the area of most acute lender concern, which has focused on taller buildings.

It settles nothing about whether the building is safe. Height is a jurisdictional test, not a structural one.

The point to carry forward

Lender requirements in this area have changed repeatedly and will change again. A position that is comfortable today is not guaranteed to be comfortable when you sell or remortgage, and the Lexsure wording below makes that point in terms.

Keep whatever evidence exists about the building's height and construction — who confirmed it, when, and on what basis. If the question is ever reopened, that is what you will need.

If anything about the building suggests it is near the threshold, it is worth establishing the position properly rather than relying on an assurance.

Building Safety Act 2022 - Building Under 11 Metres

Archive Lexsure e-ROTScope Below the thresholdWord count 95Published September 2023

For non cladding defects there are a number of protections in place for leaseholders to prevent them from being charged substantial amounts for remediation works. The legislation however put in a number of qualification criteria, which have meant that some tenants do not qualify.

The protections will cap service charges for long leaseholders at £10,000 for any ten year period.

Mortgage lenders are becoming increasingly concerned about the safety of buildings over 11 metres and the new legislation that has been put in place.The legislation affects Buildings that are 11 metres in height or over. …

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