RAAC in the private sector

Scott Mounfield is a senior associate at law firm Browne Jacobson

Earlier this month the Department of Education published a list of 147 schools and colleges where the presence of Reinforced Autoclaved Aerated Concrete (“RAAC”) was confirmed.  This has since been increased to 174.

Although this has largely been in the news because of its use in schools and the impact it has had on school closures, the use of RAAC was not necessarily limited to schools and so all building owners, and those responsible for maintaining them, should be alive to these issues.

How do we know if we have RAAC in our building?

RAAC was used in construction between the 1950s and 1990s, mostly in flat roofing, but also in floors and walls. RAAC is a cheaper alternative to standard concrete, and its short usable lifespan, (estimated to be as low as 30 years) means that its use in permanent buildings is now causing deterioration to the fabric of those buildings, and indeed the risk of collapse.

If you think there is any chance you have RAAC in a building, you should consult a suitably qualified professional (such as a structural engineer) to obtain a survey upon whether the building contains RAAC and advice upon the building’s current condition and whether any appropriate management or remediation strategies can be put in place, or whether use of the building needs to cease.

If your buildings are affected, whose responsibility is it to repair them?

In order to establish this you will first need to establish how you occupy the property on which the buildings are constructed.  This might be:

• As freehold owner;
• As tenant under a lease; or
• By virtue of some other agreement perhaps a licence to occupy or other more informal arrangement.

Freehold Owner

If you are the freehold owner then liability for the maintenance and repair of the building will fall on you and you will be responsible for the safety of those who come onto the property.

Tenant under a lease

If you are a tenant, the responsibility for building repair will be set by the provisions of your lease and you may need to review the terms to clarify whether you are responsible for making good any deterioration to the property.  Each lease could contain any number of different provisions and it is crucially important if you do have RAAC in your building that you review the terms of your lease.

If the lease makes you responsible for making good any deterioration to the property, you will likely be responsible for either repairing any deteriorating RAAC or showing that there has been no deterioration in the condition of the RAAC.  However, the difficulty with RAAC is that deterioration is often not apparent until failure occurs, and it is unlikely that a structural engineer or surveyor would provide an unqualified report on any building which contained RAAC.

Licence or other more informal arrangement

A licence or other informal arrangement will often not impose obligations on you to undertake structural repairs.  However, if you need use of the building for your business this may still present a significant issue, particularly if there is no agreement which sets out who will be responsible for structural repairs. If you do have RAAC in the building, you may want to seek legal advice to establish who is responsible for structural repairs and whether you will have to continue to pay the licence fee if the property cannot be occupied while those works are being carried out

Will I need planning permission or listed building consent when undertaking works?

The steps proposed to tackle any RAAC may have implications under the Town & Country Planning system. These issues could be pertinent if the building is of historic importance and has listed status or any demolition or construction work will require planning consent and you may need to seek advice from a planning specialist as soon as possible.

Can I claim under warranties provided at the time the building was constructed?  

Given the time passed since the widespread use of RAAC, it is very unlikely that construction warranties will cover RAAC-related structural issues.  However, you should still confirm the position.

Will my Insurance cover the cost of works?

Deterioration of RAAC may not be considered an insured risk, but rather a maintenance and renewal issue, so your buildings insurance policies may not provide cover for repairs.  If in doubt we suggest you check the terms of your buildings insurance or liaise with your insurer.