Reinforced autoclaved aerated concrete, also known as RAAC, is a lightweight form of concrete commonly found in roofs, floors and walls. A cheaper alternative to standard concrete, the material was widely used to construct many public buildings such as schools and hospitals but it has also been identified in buildings in the private sector such as offices, shopping centres and warehouses. RAAC was commonly used in all types of buildings constructed in the 1980s to the early 2000s, and as such it is pervasive throughout the UK.
Whilst RAAC looks like standard concrete, it doesn’t have the strength and durability of the more traditional material. This means that buildings constructed with RAAC are at risk of collapsing with little or no notice and potentially putting lives at risk.
We’re receiving an increased number of instructions from landlords and tenants of commercial premises concerned about the presence, whether actual or suspected, of RAAC and the legal and commercial consequences thereof. Each case is different but there are a number of issues and questions that are coming up repeatedly, which we will explore in more detail in this article.
The integrity of a building’s structure is crucial to the proper functioning of a business. If RAAC is located in the structure of a building and the condition of the RAAC is deemed to be poor and/or deteriorating, there is a strong likelihood that the affected part, or in some cases, the entirety of the building will be deemed unsafe and therefore unusable. Furthermore, if RAAC is identified and works are required to remediate or replace the material, it’s common for sections of buildings to be propped or supported whilst works are ongoing or pending a solution being found.
In either case, the landlord and tenant’s use of the affected building will be inhibited and this will have a direct impact on the tenant’s business. If the RAAC is identified before it has started to deteriorate then there are low impact methods that can be used to maintain its condition.
It’s very common for issues to arise out of the duty of care owed by employers to employees/visitors under the Health and Safety at Work etc. Act 1974 and the obligation on occupiers to ensure the safety of their visitors (whether invited or not) to their premises (Occupiers’ Liability Acts 1957 and 1984). Where RAAC is identified and it is in poor condition, there is a real risk of it collapsing and causing harm to employees and customers. As explained above, it is common in these cases for areas of RAAC-affected buildings to be entirely sealed off from use until the issues are addressed in order to limit liability that may result from any collapse of RAAC.
We have seen how RAAC hit the deadlines when it was located in schools and hospitals but thankfully it was identified and measures taken to forestall any disastrous consequences. There is still, however, the real risk of other buildings constructed with RAAC suddenly collapsing and causing injury, or worse death; news which would send shockwaves throughout the country and beyond. There is also the risk of reputational damage to a business unable to operate from an affected site.
It’s therefore important to acknowledge that the health and safety risks of RAAC, which in turn carry a reputational risk, are potentially the greatest concerns for landlords and tenants over and above the commercial risks.
Whilst a landlord or building owner is not under any statutory legal duty to actively identify whether RAAC is present in a building, they may be under a contractual duty to do so and should therefore check the wording of the lease in the first instance. It should be noted that RAAC could be deemed a relevant defect for the purposes of the Building Safety Act 2022 and as such, a landlord or manager of an applicable residential building may be required to undertake investigations and necessary works to RAAC where there is a risk of a building collapse.
Given the risks, it’s always advisable to be proactive and there are different steps that the parties should take depending on whether they are the landlord or the tenant.
Landlord: if there is any risk of RAAC being present in a building, the landlord should take steps to understand the extent of it and its condition so that they can then take appropriate measures to maintain it.
Tenant: it would be prudent for a tenant to be proactive in ascertaining whether the property contains RAAC, its condition and any works that may be required to maintain it. The extent of investigations will very much depend on whether the tenant is responsible for the maintenance of the structure of the building. However, even if the landlord is responsible for maintaining the structure, it would still be advisable for a tenant to determine the presence of RAAC, so they are fully aware of its condition and any immediate risks. They can then work with the landlord to ensure the appropriate monitoring and remedial works are implemented.
Where RAAC is identified, the first step is to check the lease to determine responsibility for repairing the affected section of the building. If it’s a full repairing lease of the whole building, it is likely that the tenant will be responsible. Where the lease is an internal repairing lease which forms part of a larger building, a landlord is likely to be responsible.
Whilst the law in relation to RAAC is still evolving, it’s important to appreciate that, as with earlier court cases involving concrete, the mere presence of RAAC will not necessarily mean that the property is out of repair. As such the repairing obligations in the lease will not necessarily apply, nor can an interim notice to repair be served on the tenant in every case.
It’s common for disputes to arise between parties if there is any ambiguity in the lease regarding repairing obligations, particularly where the RAAC is widespread or is in an area that could be disputed by either party. In these cases, it’s important to seek professional advice regarding the specific wording in the lease to assist in resolving or heading off any disputes.
RAAC is an issue for commercial landlords and tenants operating in many sectors and is likely to become more pervasive as affected buildings age. It’s also essential landlords and tenants alike consider RAAC, and where any related liabilities might fall, prior to and during 1954 Act lease renewals. The risks arising from the presence of RAAC are more than just commercial and it’s often not easy to pinpoint who is responsible for the overall maintenance and responsibility for the RAAC, which can lead to expensive and complex legal disputes.
Always seek legal/professional advice if RAAC is suspected or present as it’s very nuanced and untested territory. For further information, please contact the property litigation team.
