A lot has been said recently about Reinforced Autoclaved Aerated Concrete or RAAC. Much of the focus has been on its use in schools. However, RAAC has potentially been used in all sorts of building projects, including leasehold flats.

What can leaseholders do if it transpires that this product has been used in their flats? If work is needed to repair or replace RAAC in a leasehold property then freeholders might well seek to recover those costs through service charges leading to further massive bills for unsuspecting leaseholders. Given the greater complexity involved in identifying and remedying RAAC those bills may end up dwarfing those related to cladding.

However, in some cases the Building Safety Act (BSA) might well protect leaseholders. While most people think of it as relating to fire safety the BSA offers much wider protection against “building safety risks” which include the risk of collapse of the building or a part of it. That protection extends to enabling leaseholders to demand that works are done and also to protection from service charges levied to remedy these defects. These can both be enforced by action in the First Tier Tribunal. 

However, the BSA has limits. Firstly, it only deals with properties that contain dwellings and so the only leaseholders that can derive protection from it are those with residential leases or those who have commercial leases within a partially residential building. Second, the BSA only applies to defects. Freeholders and developers might well argue that RAAC has a lifetime, like any product, and any work being done is part of the normal process or repair and renewal and does not represent a defect. The quality of this argument will probably depend on how the RAAC has been used in a building and whether that use is an integral part of the structure or something more minor that could conceivably be expected to be repaired or replaced. Thirdly, the BSA only protects buildings that have had construction or conversion work carried our since 1993, being the thirty years before this part of the BSA came into effect. 

There is also some uncertainty as to whether the BSA protects leaseholders from the cost of investigations to establish whether RAAC exists and whether it needs works done on it. Service charges are not payable in respect of measures taken to prevent a risk from materialising or for reducing its severity but this may not include establishing whether that risk exists in the first place.

 Taking those limits into account it may be worth leaseholders who might be affected by RAAC taking early advice as to the protections that the BSA might offer them and how these work before large bills start to arrive.