With cladding testing currently taking place on residential blocks across the UK, Louise Scott-Nichols at LHS Solicitors LLP outlines the responsibilities of commercial and residential landlords when it comes to ensuring their buildings are compliant with health and safety regulations.
Following the tragic events surrounding Grenfell Tower, there has been little clarification for landlord's outlining their repair and maintenance obligations. To ensure landlords are clear on their responsibilities, I'll be exploring their statutory duties in relation to residential high-rise flats and other complex buildings on a residential and commercial scale.
Statutory duties in relation to high-rise and complex buildings
Statutory duties are imposed on landlords under the Regulatory Reform (Fire Safety) Order 2005 and the Health & Safety at Work Act 1972 amongst others.
Broadly speaking, the key statutory duties for landlords are:
- To carry out a detailed Fire Risk Assessment, identifying any possible dangers, and keep it under constant review
- To consider those at risk: the elderly, physically impaired, children
- To eliminate or reduce, so far as is reasonably practicable, the risks from fire and introduce fire precautions to deal with any residual risks
- To create an emergency evacuation plan
Fire safety obligations for residential properties
When it comes to fire safety within residential property, landlords must provide a smoke alarm on each storey and a carbon monoxide alarm in any room with a solid fuel burning appliance. They should also ensure that tenants have access to escape routes at all times.
After the Lakanal House fire in 2009, the Coroner made a number of recommendations for landlords in addition to the Government and local fire and rescue services.
These included the need to provide clear information and guidance to residents concerning the fire safety features of their building and what to do in the event of a fire – for instance, whether tenants should stay in the property or leave. There has been huge debate around this issue alone, long before the Grenfell Tower tragedy. Advice on such matters will clearly differ from property to property, given the case-by-case nature of which this type of advice will be assessed. However, it is prudent for landlords to communicate clearly to their tenants the appropriate action they should take in their specific property.
Another key recommendation for landlords to consider as a matter of urgency, was the retrofitting of sprinklers. The presence or absence of a properly maintained and working internal sprinkler system has been the subject of considerable debate and is a key consideration in relation to fire safety.
Currently, there is no statutory duty to install sprinklers retrospectively, and for buildings constructed prior to 2007, it is not mandatory to have sprinkler systems fitted. With Grenfell Tower demonstrating catastrophic consequences resulting from minimal fire safety measures, it is clear that such lack of obligation must change.
Fire safety obligations for commercial premises
Whether the landlord or tenant is responsible for certain aspects of the commercial property is determined by law and the terms of the lease. However, both the landlord and the tenant normally share fire safety responsibilities. For example, in a multi-occupied office block housing several employers, all tenants have responsibilities for those parts of the premises used by their employees.
The landlord or managing agent must ensure fire regulations are complied with on common staircases, and the landlord is responsible for maintaining and checking shared fire safety equipment, such as a fire alarm system covering the whole building.
But where does the responsibility for fire safety and health and safety in general lie when a building is owned or managed by more than one party?
Commercial buildings managed by more than one party
When taking on a commercial property lease it is vital that each party understands its responsibilities for the repair and maintenance of the rented building. Ultimately the division of maintenance responsibilities amongst relevant parties will be clearly set out in the lease.
When it comes to health and safety, landlords and commercial property managing agents may have a duty to share health and safety responsibilities if they exercise any control over the workplace. This is particularly relevant where several businesses operate in the same building and they share the use of communal areas.
Residential buildings managed by more than one party
In cases where residential property is managed by both a property manager and the landlord, the responsibilities of the property manager will vary based on the specific terms of their management contract, but can include responsibility for regular maintenance and emergency repairs.
However, it is worth remembering that the buck does not stop with them – repairs that fall under the remit of the landlord are the landlord's responsibility. The agent simply acts as an intermediary and makes arrangements to engage contractors to undertake the works required. For example, the requirement for an annual gas safety inspection still rests with the landlord, though it is more likely that the agent will organise this.
The tenant complaints procedure and legal penalties
If a management company deals with repairs on behalf of the landlord in a residential property but does not in fact do these, then the tenant is at liberty to invoke the company's complaints procedure in the first instance. This may prompt the company to arrange the repairs. If still nothing is done, the tenant can complain to their letting agent redress scheme if there is no satisfactory outcome. Then, the tenant can report to the landlord directly, putting their concerns in writing.
If the landlord does not undertake the repairs and this affects the tenant's health and safety in their home, they can ask the local authority's environmental health department to inspect the condition of their home. The authority will be able to offer help and advice and serve the landlord with any appropriate notices to undertake repairs/remediation within a timeframe. Failure to act at this stage is in fact a criminal offence and the local authority can prosecute the landlord for failure to abate the nuisance or remedy the problem.
In a commercial context, if the tenant suspects that the landlord is in breach of obligations under the terms of the lease, they are advised to raise concerns with the landlord in the first instance, in writing, and provide a reasonable time in which the landlord can investigate and address the problem.
A time for change
Landlords, whether in residential or commercial property, should not await the results of a public inquiry or inquest into the Grenfell Tower tragedy to take proactive action in reviewing their current procedures, equipment and property. At this stage, it is too early to draw conclusions from the tragedy and the inquiry could last years.
The statutory duties are clear – landlords must review their current position to ensure compliance – ignorance is no excuse.