Of course, all this highly complex stuff is only the gateway to whether the exceptions and limitations in Schedule 8 to the BSA 2022 apply. Those exceptions and limitations are themselves extremely complicated; space and word count does not permit them to be considered here.
Returning to what I earlier described as the purpose of this article, one has I think to start by looking at the end danger for solicitors. It is possible that a purchaser who ends up paying lots of service charges which they were not in fact required to pay might wish to know why they were not advised by their conveyancing solicitor that their liability could be limited.
To avoid that difficulty, a solicitor could in my view take one of several courses at the time of instruction. One possible course is to make clear in their retainer letter (or perhaps the Report on Title, but probably better in the retainer letter) that they simply will not advise on the effect of the BSA 2022. That would be safe, but unhelpful to the tenant and, arguably, an incomplete service.
Alternatively, it seems to me that it would not be unduly onerous for a solicitor at least to try to ascertain whether any of the exemptions or limitations in the BSA 2022 are engaged. It should be possible to ascertain, from a few well-chosen questions to the client, whether the building is a relevant building. If it is, then at least paragraph 2 of Schedule 8 to the BSA 2022 will apply (which would prevent a landlord from recovering service charges for relevant defects if it or an associate is responsible for those defects).
Similarly, it should not be too difficult to ascertain whether a lease is a qualifying lease. If it is, then the remaining exceptions in Schedule 8 to the BSA 2022 (concerning well-resourced landlords, low-value leases, and various “permitted maximum” payments) will potentially apply.
Finally, while it will probably not be possible to give definitive advice about the impact of the BSA 2022 in the context of a usual conveyancing transaction, solicitors might want to consider offering this as a premium service for an additional fee. Particularly where the service charge, and thus the saving, is potentially high, clients might be prepared to pay for the considerable work this is likely to involve.