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RAAC in Commercial Property - what is it and what should you do about it?

on Thursday, 12 October 2023.

If you are an owner or an occupier of a commercial property you need to know what RAAC is and how it could affect you and impact your property.

Reinforced autoclaved aerated concrete, or RAAC for short, has made headlines over the last month, as schools have been closed to carry out inspections. However, RAAC is not confined to schools. As a popular building material from the 1960s to the 1990s, it can be found in a wide range of buildings including shops, offices and universities.

Who is this note for?

Landlords, tenants and occupiers of premises all have an interest in identifying RAAC and ensuring that premises are safe.

  • Occupiers are responsible under the Occupiers' Liability Acts and under workplace health and safety legislation to ensure that premises are safe for employees and others (such as visitors and trespassers). This applies equally to tenants who occupy, landlords who have control over common areas, and owner-occupiers. Failure to comply can lead to civil or criminal liability if harm results.
  • Landlords may be obliged under the Landlord covenants in Leases to maintain the structure of their premises, and may be liable to tenants and third parties for any harm which results from disrepair in those premises. Landlords who have a right to maintain the structure may also be liable to third parties who suffer harm from any disrepair, under s4 of the Defective Premises Act 1972.
  • Tenants may also have undertaken to maintain the structure of the premises they let, and may be liable to their landlords to keep the premises in repair. This will include keeping RAAC in repair.

Other stakeholders, including employees, lenders, insurers and regulators, will also be interested in ensuring that RAAC is dealt with appropriately.

What should you do?

The Institute for Structural Engineers (IStructE) and Health and Safety Executive (HSE) have issued guidance on dealing with RAAC. They suggest a three stage approach:

  1. Identify: RAAC isn't present in all buildings. It's therefore necessary to identify whether RAAC is present in the building you own or occupy. The Department for Education published guidance on the identification of RAAC which is a useful starting point and can be applied in a general sense to commercial property. You can choose to employ a  specialist surveyor or engineer if you are in any doubt.
  2. Assess: If RAAC is identified, you should seek specialist advice on the risk that it presents. This may involve intrusive surveys and may be disruptive to any tenants or occupiers.  We would encourage owners and occupiers to take a collaborative approach to allow these assessments to be carried out. However it may be necessary to seek legal advice if inspections are problematic given the use or occupation of certain properties, or where agreement cannot be reached between the relevant parties.
  3. Manage: If RAAC has been identified in your property it is important to seek specialist advice on the steps you should take to minimise the risk of harm. This could involve vacating premises while assessments take place or undertaking structural work to support failing RAAC. While RAAC may have been identified it may currently be safe and so a programme of monitoring will need to be implemented to ensure that this remains under review.

Sector-specific guidance on RAAC, including the conduct of risk assessments and monitoring, has been published by the Local Government Association and the Department for Education which may be more broadly applicable and helpful.

How can we help?

We can help to consider the impact of these developments and how to manage the risks associated with them. We can check the terms of Leases and other occupational documentation to check your liability. We can assist where disputes arise regarding access, costs and liability for inspections and repairs. We can also assist with communications with stakeholders, regulatory reporting, funding and, where a building has failed, liaison with the HSE and insurers and liability for claims.

Should you have any queries relating to RAAC, please contact Philip Sheppard in our Property Litigation team on 07384 256178, or complete the form below.

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