Commercial landlords leasing non domestic premises can often be unclear as to the extent of their health and safety duties. It is generally accepted by landlords that where there are multiple tenants in a property, the landlord will retain responsibility for common areas. Landlords are however subject to an overriding duty to ensure that they take reasonable measures to ensure that premises they control are safe and so additional duties for health and safety may fall on landlords in relation to the leased areas of premises if they exert any control over those areas. In some cases, duties falling upon landlords and tenants can overlap, with both parties having co-existing duties in relation to health and safety issues.
In general terms, the greater the extent of control the landlord exercises over the leased premises, the greater the potential liability. The starting point for determining the extent to which the landlord exerts or is able to exert control will be the terms of the lease, but what the landlord does in practice will also be an indicator of control. Responsibilities as defined by the terms of the lease should be aligned with the regulatory framework.
The key areas of health and safety, in relation to which landlords need to understand their duties, are:
Anyone with control over premises has responsibility in relation to fire safety. This is usually the employer (i.e. the tenant) if the leased premises are used as a workplace. However if landlords retain any responsibility for the safety of the premises in terms of managing fire risk, the landlord can become responsible.
Refrigeration, air conditioning and heating systems
The party responsible for refrigeration systems, air-conditioning systems and heat pumps is the party with the control over this equipment. This means the party with the actual control over the technical functioning of the equipment which includes the party who has free access, the day-to-day running and the power to decide on technical modifications to the equipment. It may be that some of these fall upon the tenant but some may remain with the landlord.
The duty holder in relation to asbestos is the party with the maintenance and repair obligations, which will be defined in the lease. In the event that maintenance responsibilities aren't clearly defined, the legal duty rests with the party which has the greatest degree of control over the premises. The main duty is to be able to identify the presence of asbestos within the premises so that the information can be utilised as part of the risk assessment process preparatory to the commencement of construction work.
Responsibility for electrical safety is also often set out in the lease. Tenants are responsible for assessing the risks of their use of electricity and taking steps to control those risks. Landlords usually have a duty of care for wiring systems and electrical equipment and should conduct electrical safety checks before leasing a property.
The primary responsibilities for gas safety in non-domestic commercial premises falls upon occupiers (i.e. tenants), who must ensure that any gas appliance, installation pipework or flue installed in their workplace is maintained in a safe condition. Landlords may also have more general duties under Health and Safety at Work etc Act 1974, such as ensuring that heating equipment in common parts is maintained safely. The lease should be used to determine how these responsibilities are allocated.
The common theme emerging for most of the areas above is control. The party in control will usually be the party with responsibility. Control however can often be difficult to determine. It is therefore important for landlords to ensure that their leases clearly set out who has the control in relation to each issue and who is responsible for what in terms of health and safety. This is the only way for landlords to ensure they do not become liable for health and safety issues which they thought were the tenant's responsibility.