The Building Safety Act 2022 (BSA) is ripe for litigation in the context of both its meaning and effect. Canary Riverside (a bit like the BSA is expected to be) has been the subject of long running litigation and now, as part of that ongoing saga, it has become the subject of the first decision of the FTT on the identity of an Accountable Person (AP).

Octagon Overseas Limited (Octagon) and others v Mr Sol Unsdorfer (1) Circus Apartments Limited (2) and Leaseholder represented by the Residents Association of Canary Riverside (3) centres around the question of whether a tribunal-appointed manager can be an AP for the purposes of the BSA.

The AP is one of the new elements introduced by the BSA along with the concept of the Principle Accountable Person for higher-risk buildings. For the purposes of the BSA (and as a reminder) a building will fall into the higher-risk category where it is at least 18m high or with at least 7 storeys and with at least two residential units (subject to some limited exceptions).

Identifying who the AP is can sometimes feel like a minefield with no easy solution and this is an area which has already seen a number of applications being made to the Tribunal for a determination.


In this case, Octagon was the freehold owner and the landlord of five higher-risk buildings.

Mr Sol Unsdorfer was the tribunal-appointed manager of the estate under Section 24 of the Landlord and Tenant Act 1987 (the 1987 Act).

Octagon granted long leases to:

  • Canary Riverside Estate Management Limited in respect of buildings one to four; and
  • Riverside CREM 3 Limited in respect of building five.


Section 72(1) of the BSA defines the AP for a higher-risk building as:

  • a person who holds a legal estate in possession in any part of the common parts; or
  • a person who does not hold a legal estate in any part of the building but who is under a relevant repairing obligation in relation to any part of the common parts.

Section 72(6) of the BSA defines the ‘relevant repairing obligations’. Under this definition to be the person who is under a repairing obligation Mr Unsdorfer would need to be required under a lease, or by virtue of an enactment, to repair or maintain any of the common parts.

How does the BSA apply here?

Mr Unsdorfer was clearly under a repairing obligation by virtue of the terms of the management order. However, in this case Mr Unsdorfer’s powers were derived from the management order. The parties agreed that Mr Unsdorfer did not satisfy the requirement under section 72(1) (a) because he did not hold legal estate in any part of the buildings.

The second limb under section 72(1) was less clear. The question here was whether the words “by virtue of an enactment” refer solely to a direct requirement imposed by legislation or whether they can also include obligations imposed under an order that is itself made under an enactment.

It was accepted that Mr Unsdorfer was directed to manage the building, including the obligations to keep the building in repair as set out in the lease, however it was agreed by both the FTT and the landlord that Mr Unsdorfer had no obligations under the lease. The duties to repair were solely derived from the management order.

It was considered by the FTT that the words used in the BSA were ambiguous but concluded that the words ‘by virtue of an enactment’ applies to cases where a direct requirement is imposed by legislation, not by an order of the court or tribunal. Therefore, the FTT concluded that a tribunal appointed Manager cannot be an Accountable Person under the Act.

So who was the AP?

The FTT determined that there were multiple AP’s for the buildings.

The following were considered to be an AP for the buildings for the purposes of the BSA:

  • Octagon for buildings one to five
  • Canary Riverside Estate Management Limited would also be an AP for buildings one to four
  • Riverside CREM 3 Limited is an AP for building five
  • Circus Apartments Limited is also an AP for building five, as they own a 999 year underlease.

The take-aways

This decision is likely to have significant practical consequences for the Manager in this case and other Managers over higher-risk buildings in carrying out their functions under a Management Order.

The decision, whilst determining the identity of the AP for the various buildings, did not indicate in its ruling who is responsible for which parts of the buildings. It seems likely that, if agreement as to who is responsible for the buildings cannot be reached, that there is likely to be further litigation stemming from this decision to determine who the principle accountable person is or potentially an appeal. Watch this space!

Whilst this case may not fully solve the question of who actually is the AP for the purposes of the BSA, we are certainly one step closer to knowing the answer.

If you have any questions about how the BSA affects you, whether you are a leaseholder, management company, managing agent, developer or freeholder, get in touch with our Building Safety Team on