Understanding accountability, limitation and risk in construction

This article will review two significant legal developments from 2025 that have direct implications for building surveyors.

Each highlights how statutory regimes and contractual mechanisms are being applied by the courts in ways that materially affect risk management, professional exposure and client advice across the built environment.

It is designed to address historic failures by placing financial responsibility on those connected with the original development, rather than on leaseholders or the public purse.

Central to this regime are the remediation contribution orders (RCOs), which enable tribunals to require developers, landlords and associated companies to fund remediation works relating to relevant defects.

Crucially, the BSA adopts a deliberately broad definition of associated persons, reflecting the UK parliament's intention that liability should follow economic reality rather than corporate form.

This approach was reinforced by the Court of Appeal in the case of Triathlon Homes LLP v Stratford Village Development Partnership & Ors [2025] EWCA Civ 846.

The court upheld the First-tier Tribunal's decision to impose RCOs on both the original developer and its associated company. The judgment made clear that well-resourced developers and their associates should ordinarily fund remediation before public money is used, and that the availability of government funding does not displace this statutory objective.

For building surveyors advising developers, landlords or managing agents, the message is clear. Corporate structuring, including the use of special purpose vehicles or historic ownership changes, offers limited protection where associations can be established. The courts have shown little sympathy for arguments that seek to dilute responsibility through complexity.

In The Mayor and Burgesses of the London Borough of Tower Hamlets v Various Leaseholders of Brewster House and Malting House [2025] EWCA Civ 1591, the issue was whether right-to-buy leaseholders could be required, through service charges, to contribute to the cost of remedying a fundamental pre-existing structural defect.

The court held that general sweeper clauses referring to works carried out for safety, management or maintenance were insufficient to impose liability for remedying an inherent design defect that pre-dated the leases.

Interpreting such clauses to permit recovery of potentially ruinous costs would be inconsistent with both the contractual context and the statutory purpose of the right-to-buy regime.

For building surveyors advising landlords, managing agents or leaseholders, the decision is a reminder that liability for historic structural defects will not be lightly inferred. Clear, express wording is required if responsibility is to be shifted, particularly where consumer protection legislation forms part of the background context.

From a surveying perspective, this raises practical challenges. Many buildings now caught by the BSA were designed, constructed or refurbished decades ago. Records may be incomplete, fragmented or lost. Yet the ability to evidence what work was undertaken, when defects emerged and how costs were incurred may be critical in both pursuing recovery and resisting claims.

This places renewed emphasis on document retention and evidential discipline. Surveyors involved in inspections, defect investigations and remedial works should assume that their records may be scrutinised long after the event. What was once considered good professional practice has become an essential component of risk management.

What remains unresolved is how limitation applies to BLOs. Unlike other parts of the BSA, the legislation does not prescribe a limitation period, define when a cause of action accrues or link BLOs expressly to the Limitation Act 1980.

This has given rise to competing interpretations. One view is that a BLO cannot be pursued where the underlying claim is time-barred. The alternative, and increasingly persuasive, interpretation is that limitation bars the remedy rather than extinguishing liability itself.

On that analysis, a time-barred liability may still exist as the foundation for a BLO, with limitation considered as part of the court's just and equitable discretion rather than as an absolute bar.

The structure and purpose of the BSA support this latter view. Parliament amended limitation periods expressly for some BSA claims but chose not to do so for BLOs. That omission suggests a conscious decision to leave the issue to judicial discretion rather than to conventional limitation rules.

This creates uncertainty for building surveyors. Potential exposure may persist far longer than anticipated, particularly where historic defects and corporate associations exist. Advising clients now requires an appreciation that liability may not align neatly with traditional limitation assumptions.

A key example is the Scottish decision of the Inner House of the Court of Session in Legal and General Assurance (Pensions Management) Ltd v Halliday Fraser Munro & Ors [2025] CSIH 24.

While not binding in England, the judgment is persuasive and provides clear guidance on how the courts approach collateral warranties and limitation.

In this case, architects provided a collateral warranty to a subsequent purchaser after the building had been acquired. The warranty contained a standard 'no greater duties' clause, limiting the architects' obligations to those owed under their original appointment.

The architects argued that this wording also imported the same five-year prescriptive period that would have applied to claims by the original employer under Scots law.

The Inner House rejected that argument. It held that the clause addressed the scope and nature of the duties owed, not their duration. A collateral warranty is a separate contract, and unless it contains clear and express wording limiting the period of liability, the statutory prescriptive period runs from the date the warranty is granted.

The court also rejected the notion of any general principle of equivalence requiring time bars or defences to align automatically between the underlying appointment and the warranty. If parties intend to limit liability by reference to time, they must do so in clear and unambiguous terms.

The key lesson is that warranties can extend exposure in ways that are not always appreciated at the time they are granted. A warranty executed years after completion may revive liability that would otherwise have been thought dormant. Where no express limitation provision is included, the clock may start running afresh.

From a risk management perspective, surveyors should be alert to both the timing and wording of warranties, particularly on long-life assets. Standard forms and familiar clauses may not achieve the intended limitation of exposure unless they are carefully reviewed and, where necessary, amended.

For surveyors advising on building safety, the BSA reinforces the need for early risk identification, careful documentation and realistic advice on potential exposure. Developers and asset owners should be advised that liability may extend beyond the original contracting entity and beyond traditional limitation periods.

On the professional side, collateral warranties require close scrutiny. Surveyors involved in drafting or advising on such documents should consider whether limitation and duration of liability have been addressed expressly and unambiguously. Assumptions based on general wording are unlikely to withstand challenge.

Above all, record-keeping has become central. Whether advising on remediation, funding applications or professional exposure, the ability to evidence decisions and actions over time is now critical.

For building surveyors, these developments provide a clear framework for better risk management and more informed advice to clients, whether navigating building safety obligations, managing professional exposure or advising on long-term asset risk.