Fire safety issues have attracted everyone’s attention in light of the tragedies witnessed in London. The Regulatory Reform (Fire Safety) Order of 2005, simply referred to as the Order, assigns responsibilities with regard to commercial properties. Below you will learn about the areas of contention around the Order during a transaction involving property, with their suggested solutions.
Who Bears the Fire Safety Duties?
The responsibilities/duties are assigned to the employer, in case of a place of work, or the person in control, where a business, trade or any other undertaking is carried on by them.
In the case of leasehold property, establishing who has control can be somewhat confusing. According to the guidelines provided by the government, this can be the tenant, landlord or both, especially if the tenant only takes up part of the property, or repair responsibilities are split between the two. Furthermore, landlords are considered to have taken back control, and are thus the responsible party, when they surrender or forfeit a lease.
Tenants are assigned responsibility for their specific units, while landlords or the management are deemed to be responsible for common areas in the case of shared properties such as shopping centres. For the purposes of the Order, tenants and landlords should be clear on who is responsible for what.
9th Regulation: Responsibility to carry out a risk assessment
1st Area of contention: The contents of a risk assessment are not clarified.
It is upon the responsible party to make what is termed as a “suitable and sufficient” assessment of the risks affecting all relevant persons. This provision lacks clarity, as the responsible person, while considering the nature of the business, property and other related factors, is left to choose what they deem to be “suitable and sufficient”.
A possible tenant or buyer may expect to be furnished with a risk assessment report, resulting in unnecessary delays in case they are adamant on seeing one before agreeing to take the property, therefore, introducing challenges in such property transactions. The fact that most leases place all statutory compliance responsibilities on the tenant means that they may overlook this responsibility or simply have no idea how to fulfil it.
The following suggestions are in line with government guidelines, although there are no specific criteria with regard to a “suitable and sufficient” risk assessment.
- Spot all fire hazards
- Spot everyone who might be at risk
- Assess, eliminate or mitigate all risks
- Write down all the findings, come up with an emergency plan and conduct training exercises
- Keep the fire risk assessment current by reviewing it and making relevant updates
- Since compliance is considered to be a personal responsibility, past assessments do not pass with the transfer of property. The new occupier/owner is responsible for the risk assessment after a property is transferred
Should the risk assessment fail, it is up to the liable party to amend the problem whether that means clearing fire exits or drawing up a new floor plan on floorplansusketch in order to make the building fire safety compliant.
2nd Area of contention: A new risk assessment is required after alterations are made to a property
Instead of using time frames to indicate the lapse of risk assessments, the Order mentions “triggers”. Making substantial alterations to the property is one of the included triggers.
Start by familiarizing yourself with the renewal risk assessment triggers. Find out whether any structural alterations made warrant a risk assessment review. Note that even the simplest of alterations, such as temporary partitions may warrant the existing risk assessment, as the current escape path may be no longer viable.
14th Regulation: Responsibility to ensure all escape routes are clear at all times, including the exits as well.
Area of contention: The escape path is located on property owned by a third party
If the current fire escape path is on property that is controlled or owned by a third party, it may be blocked or altered by the 3rd party if it isn’t well documented, making it unfeasible and leaving the responsible party in contravention of their duty.
You should properly document any right to use any 3rd party land. In most cases, however, the onus is placed on the tenant or buyer, by the landlord or seller, to come up with their own ideas about the property. Before committing to the property, the tenant or buyer should inspect the property and such escape routes, pointing them out to their legal representatives to negotiate for, and obtain the rights to use 3rd party property; otherwise an alternative route should be planned.