In light of the recent tragic events in London the issue of fire safety is currently to the forefront of everyone’s attention. In the context of commercial properties the Regulatory Reform (Fire Safety) Order 2005 (the Order) sets out relevant obligations. Compliance with the Order is one of the standard enquiries raised in property transactions and may, regrettably, be the first time the issue is considered. This article highlights common problem areas during property transactions surrounding the Order, and suggests practical solutions.
To whom do the duties apply?
Duties lie with the 'responsible person' which is either the employer in the context of a work place, or the person who has 'control of the premises' in connection with the carrying on by them of a trade, business or other undertaking.
It can be difficult to determine who has ‘control' of a premises in the context of leasehold properties. Government guidance suggests that this can be both landlord and tenant, particularly where there is a split repairing responsibility or where the tenant occupies part. Additionally, if a landlord forfeits or surrenders a lease, they are also taking back control and thus becoming the responsible person. If there are common parts (such as in a shopping centre) it is likely that the landlord/management company is the responsible person for these parts, with tenants being the responsible person for each unit. Landlords and tenants should therefore make sure they are clear who has what responsibilities in respect of property for the purposes of the Order.
Regulation 9: The duty to carry out a risk assessment
Problem 1 - the Order is not clear what a risk assessment should entail.
The responsible person must make a ‘suitable and sufficient' assessment of the risks to which relevant persons are exposed. This is not a particularly prescriptive duty; instead putting the onus on the responsible person to decide what is ‘suitable and sufficient’ given the nature of the property, the business and any other relevant factors. This can cause difficulties in property transactions, as a potential tenant or purchaser will expect to see a copy of a risk assessment, and failure to have one can cause delay if the purchaser/tenant insists on seeing this prior to taking the property. Additionally, as most leases will insist that the tenant is responsible for all ‘statutory compliance’, an obligation falls on the tenant which they may overlook or be uncertain how to comply with.
What can you do?
There are no definitive criteria for a ‘suitable and sufficient’ risk assessment, but the following is Government guidance.
- Identify the fire hazards.
- Identify people at risk.
- Evaluate, remove or reduce the risks.
- Record your findings, prepare an emergency plan and provide training.
- Review and update the fire risk assessment regularly.
- Furthermore, compliance is in effect a ‘personal’ obligation; when a property changes hands responsibility to address the risk assessment falls on the new owner/occupier. A previous risk assessment does not pass automatically with the property.
Problem 2 – making alterations to a property can trigger review of a risk assessment
There is no specified time frame for renewal/replacement of risk assessments, with the Order instead referring to certain 'triggers'. One such trigger is where material changes are made to the property.
What can you do?
Educate yourselves of the various 'triggers' for a review of the assessment. Consider whether any alterations affect a risk assessment. Even simply inserting demountable partioning may affect the assessment where, for example, the proposed escape route is no longer suitable.
Regulation 14: Duty to ensure that routes to emergency exits (and the exits themselves) are kept clear at all times
Potential problem – the escape route is onto third party land
Where the emergency escape route for a property is over land owned or controlled by a private third party, if such route is not properly documented, then the third party may well block or alter this route, making it unsuitable and potentially putting the responsible person in breach of this duty.
What can you do?
The right to use any third party land for escape should be properly documented. However a seller/landlord often puts the onus on the purchaser/tenant to inspect and form their own views about the property. The tenant/purchaser should therefore ensure they inspect prior to completion to understand the escape route and flag this up to their solicitor so that appropriate rights can, if necessary, be obtained or alternative escape routes negotiated.
Why does this matter?
General compliance with regulations is of course reason enough, particularly as they are aimed at ensuring the safety of employees/ other persons on the property in the event of fire, however specific reasons include the following points.
- Compliance with regulations is often a lease and funding requirement. Failure to comply with the above duties can put you in breach of such requirements.
- It is usually a requirement of your buildings insurer.
- The penalties for failure to comply with the duties which places a relevant person at risk can be severe, including substantial fines or imprisonment.