Following the tragic events that have occurred in London recently, fire safety is an issue that currently has everyone’s attention.
The Regulatory Reform (Fire Safety) order of 2005 (the Order) has set forth relevant obligations for commercial properties. In this article, Curchod and Co highlight the common problems areas that occur in property transactions related to the Order and recommend some practical solutions for them.
To whom do these duties apply?
Duties are with the ‘responsible person.’ This is an employer in a workplace context, or the individual who is in ‘control of the premises’ when carrying on a business, trade, or other endeavours.
When it comes to leasehold properties, it may be hard to determine who is in ‘control’ of specific premises. It is suggested by government guidance that this may be both tenant and landlord, especially when there are split responsibilities or when the tenant occupies part.
In addition, if a landlord surrenders or forfeits a lease, they also are taking control back and therefore becoming the person who is responsible. If there are any common parts (like inside a shopping centre) then most likely, the management company or landlord is the one who is the responsible person for those parts, with the tenant of each unit being the one who is the responsible person. Therefore, tenants and landlord should ensure they are close about who has which responsibilities in terms of property for the Order purposes.
Regulation 9: Duty for carrying a risk assessment out
Problem – the Order isn’t clear about what the risk assessment should be comprised of.
The responsible person is required to make an assessment that is ‘suitable and sufficient’ regarding the risks that relevant persons may be exposed to. The duty is not particularly prescriptive; instead, it puts the burden on the responsible person for determining what is ‘suitable and sufficient’ based on the business, property’s nature, and any other factors that are relevant. That can cause problems in property transactions, since a potential purchaser or tenant will want to see a copy of the risk assessment, and failing to have one may cause a delay if the tenant or purchaser insists on seeing it before taking the property. In addition, since a majority of leases states that all ‘statutory compliance’ is the responsibility of the tenant, there is an obligation that is placed on the tenant that they might be unsure how to comply with or might overlook.
What can be done?
No definitive criteria exist for a risk assessment that is ‘suitable and sufficient’, but the following is guidance from the Government.
- Identify individuals at risk.
- Identify fire hazards.
- Reduce, remove, or evaluate the risks.
- Record all of your findings, get an emergency plan prepared, and provide training.
- Update and review your fire risk assessment on a regular basis.
- In effect compliance is a ‘personal’ obligation, whenever a property change hands, the new occupier or the new owner becomes responsible for addressing the risk assessment. A prior risk assessment doesn’t pass with the property automatically.
Problem 2 – When alterations are made to a property it may trigger a risk assessment review
No period is specified for replacement/renewal of risk assessments. Instead, the Order refers to certain ‘triggers.’ One trigger is when a property has material changes made to it.
What can be done?
Educate yourself on the different things that trigger a review of an assessment. Take into consideration whether a risk assessment will be affected by any alterations you are thinking of doing. Even just inserting demountable partitioning might affect an assessment when, for example, your proposed escape route isn’t suitable any longer.
Regulation 14: Duty for ensuring that emergency exit routes (and the actual exists) are always kept clear
Potential problem – your escape route is on third party land
When a property’s emergency escape route is over land that is controlled or owned by a private third party. If this type of route is not documented properly, the third party might alter or block the route, which can make it unsuitable and can cause the responsible person to be in breach of their duty.
What can be done?
The right for using third party land as an escape needs to be documented properly. However, a landlord/seller frequently places the burden on the tenant/purchaser to inspect the property and form his or her own personal views about it. Therefore, the purchaser/tenant should make sure to inspect before completion to ensure they have a thorough understanding of the escape route and then flag it to their solicitor, so that if necessary, the appropriate rights may be obtained or negotiate alternative escape routes.