Lawbite: Retrospectivity under the Building Safety Act 2022 (“the BSA”) – a matter of construction

Summary

This Court of Appeal (“CoA”) judgment is one of two landmark judgments to have been handed down on 8 July 2025. This appeal concerned the retrospective effect of the BSA, in particular whether a landlord is prevented from recovering by way of service charge certain building safety related costs which it had incurred before the BSA Schedule 8 leaseholder protections came into force on 28 June 2022. 

The CoA upheld the Upper Tribunal (“UT”)’s decision and confirmed that the BSA does indeed operate retrospectively and thereby prevents such recovery.  

This decision offers helpful clarity on the retrospectivity of the BSA, the extent of the leaseholder protections and landlord’s rights where they wish to recover the costs of building fire safety remediation works from leaseholders as a service charge.

Landlords, developers, investors and tenants of buildings in England which satisfy the “relevant building” criteria under the BSA will be interested in this decision.

First Tier Tribunal’s assessment

In 2021, before the BSA was passed, the First-Tier Tribunal (“FTT”) allowed the consultation requirements under s.20 of the Landlord and Tenant Act 1985 to be dispensed with in respect of Adriatic’s urgent fire safety remedial works. Dispensation was conditional upon Adriatic not being entitled to recover the costs of the dispensation application from its tenants. Adriatic appealed against this costs condition. 

Leaseholder protections 

Although the UT agreed that the FTT was wrong to have imposed the condition, it reasoned that by the time the matter came before it paragraph 9 of schedule 8 to the BSA had come into force on 28 June 2022 limiting recovery of those costs in any event. 

Paragraph 9 of schedule 8 provides that no service charge is payable under a qualifying lease (as defined in s.119 of the BSA) in respect of legal or other professional services relating to the liability of any person incurred as a result of a relevant defect. The reference to services specifically includes proceedings before a court or tribunal. 

The UT concluded that Adriatic could not recover any of the costs of its dispensation application from tenants with qualifying leases.

Court of Appeal’s reasoning

The CoA was to decide three issues:

1. whether the costs of the dispensation application fall within paragraph 9 of schedule 8
2. whether paragraph 9 of schedule 8 applies to costs incurred before its commencement on 28 June 2022
3. whether the retrospective application of paragraph 9 of schedule 8 would violate Adriatic’s property rights under Article 1 of Protocol 1 of the European Convention on Human Rights (“A1P1”)

1. dispensation costs did fall within paragraph 9 of schedule 8 – the words ‘relating to’ are to be interpreted widely by a 2-1 majority, paragraph 9 of schedule 8 does have some retrospective effect and covers any relevant costs provided that those service charges had not been paid by the time
2. the provisions came into force on 28 June 2022
3. paragraph 9 of schedule 8 is to be seen as effecting control of use rather than deprivation of property for A1P1 purposes due to the public interest intent behind the legislation and therefore, a retrospective applicability of paragraph 9 would not violate A1P1

Key points

• Whilst the Adriatic decision focuses on recoverability of legal or professional costs under paragraph 9 of Schedule 8 of the BSA, the conclusions reached by the Court will apply in the context of most other leaseholder protections in Schedule 8
• Landlord’s need not worry about any service charges which were paid prior to 28 June 2022 – these remain unaffected and the retrospectivity does not go far enough to require reimbursement. This could leave leaseholders who have paid their service charge demands before 28 June 2022 in a worse position than late payers
• Landlords who incurred or demanded service charges and which were payable prior to 28 June 2022 but remain unpaid are in a less favourable position. This decision means that these costs are not recoverable from those which benefit from the leaseholder protections
• The lack of an unanimous judgment may lend itself to a further appeal by Adriatic 

Our LawBite on the Triathlon Homes LLP v (1) Stratford Village Development Partnership; (2) Get Living Plc; and (3) East Village Management Limited [2025] EWCA Civ 846 decision can be found here.