Fire Regulations

Text Box: On 1st October 2006 the Fire Precautions Act 1971 and a whole raft of employment protection fire safety legislation is due to be repealed and replaced by the responsible person in non-domestic premises requiring a fire safety risk assessment under The Regulatory Reform (Fire Safety) Order 2005. The risk assessment must be carried out by 1st October 2006 and responsible persons should therefore be carrying out such assessments well in advance, otherwise on the above date they will become a criminal and could be prosecuted. The fire authority is responsible for enforcement and may also serve improvement, alteration and prohibition notices. They will not, however, carry out the risk assessment. At least as frightening as the threat of prosecution, non-compliance with the legislation may well vitiate insurance the next time a policy is up for renewal. Presumably, insurers will require such an assessment before they commit themselves to reinstatement after fires. The prospect of not having insurance will no doubt spur lenders into also requiring such a risk assessment. Who is responsible? The person responsible for such an assessment will vary depending on the circumstances, but one thing is abundantly clear, the obligations go far beyond any previous requirement for a fire certificate and are not dependant on size of the enterprise or number of staff. The Department for Communities and Local Government has said that the only non-domestic premises which would not require such an assessment is probably where someone works from home, either self-employed or as an employee and, for good measure, buried in the middle of one hundred and twelve pages of Regulations, the common parts of blocks of flats are (as with The Control of Asbestos at Work Regulations 2002) defined as being non-domestic premises. Purchasers must ask for, and landlords provide, a fire safety risk assessment. The prospect of vitiating insurance policies will presumably mean that where no assessment is available, the mortgage lender must be notified and will withdraw any mortgage offer. The fact that a purchasing residential long-leaseholder, who will become a director of a residents management company after completion, will instantly become a criminal might also exercise the mind of the domestic conveyancer and managing agent. In relation to business premises, if an employer is in control of premises occupied by his or her staff then that will trigger the need for an risk assessment (which must assess the risk, including necessary remedial work, not merely for the workforce but any relevant persons, including visitors and neighbouring land owners, who may be affected. A tenant in control of their premises (as will almost certainly be the case) must also have an assessment whether or not they are also an employee and a landlord who retains control of the common parts will require a quite separate assessment. As the costs of the assessment will inevitably be added to the service charge (as also will the cost of any remedial work provided that the landlords may charge for the carrying out of statutory works), then the tenant must fully enquire as to the landlords assessment. Who carries out the assessment? The risk assessment is personal to the responsible person and criminal liability cannot be delegated. The assessment must be a satisfactory one and the Government recommend it be done professionally by an expert. In one statement from early 2005, the ODPM estimates that the cost of employing an expert to assess a small business unit would be something in the order of £50. One wonders what type of expert they are expecting! In addition, especially for older premises which did not require fire certificates in the past, remedial work may give rise to a substantial cost. Conclusion The far reaching effect of the legislation and, most importantly, the likely effect of non-compliance on buildings insurance, means that measures must be taken imminently. The cost, yet one more expense for the small business tenant before they start trading, will be unwelcome. Most tenants, as with asbestos risk assessments under the 2002 Regulations, may be tempted to flout the law regardless of any criminal consequences. Landlord’s agents cannot allow this. No landlord can allow the tenant to potentially vitiate insurance. There would be a claim in damages against the existing tenant which may well be, in practice, worthless. As with asbestos assessments, once more, the ultimate sanction may be to threaten forfeiture. Serving a Section 146 notice in these circumstances may well be foolish in the extreme however. The effect would be preferable to any break clause for the tenant who may well not seek relief and be free of an onerous property which is difficult to relet. Landlords would be advised to amend future leases in order to allow them to enter, carry out works and charge the tenant not merely in relation to disrepair but also on non-compliance with any statute. Landlords beware! Richard Snape is consultant and professional support lawyer with the firm of Davitt Jones Bould. He has written extensively on commercial property related matters and is a frequent provider of Continuing Professional Development courses for various providers throughout England and Wales, including several property specialist firms and numerous local Law Societies.

The new fire regulations could have serious consequences

for the unwary conveyancer, reports

Richard Snape