Quiz - how well do you understand your lease?
Understand the key things you should know about your lease. If you are a purchaser, this can help make sure your solicitor has covered all of these points and explained them clearly to you.
Under the Regulatory Reform (Fire Safety) Order 2005, (“the 2005 Order”) it is a requirement that a Fire Risk Assessment of the common areas of buildings containing flats be carried out.
This fact sheet will focus on;
- Fire Risk Assessments
- Taking action upon recommendations in the assessment
- Works undertaken by the landlord
- Obligations under the lease
Common areas of a building containing flats usually mean those parts of the building not within the actual living space of individual flats; for example, the entrance, hallway/corridor, landing and staircase.
Fire Risk Assessments
The Fire Risk Assessment involves the management of hazards and risks.
- A hazard is something with the potential to cause injury or ill health to someone
- A risk is the likelihood of this occurring. The risk could increase if the hazard becomes more severe.
The reason for doing a Fire Risk Assessment is to identify possible measures that will:
- reduce the risk of a fire starting and spreading
- provide means of escape
- detect fires
- fight fires
The Fire Risk Assessment will usually contain recommendations to be actioned, for example.
- install a fire alarm
- set up a sprinkler system,
- operate a stay put/ evacuate policy,
- ensure flat entrance doors are properly fire-resistant
How far should the landlord go in order to implement any recommendations?
Generally, the ‘responsible person’ has a duty to take such precautions as may be reasonably required in the circumstances to ensure that the premises are safe. It is the duty of the responsible person to evaluate the risk to people from fire, by taking into account existing fire safety measures and to decide whether additional measures are necessary.
Fire hazards could be low or high risk. Generally, the body in charge of enforcing the 2005 Order, the local Fire and Rescue Authority, would focus on the high risk hazards as a priority and use their discretion when it comes to enforcement of low risk hazards.
Once the risks have been identified, they can be measured, prioritised and managed appropriately. The landlord or, if one is appointed, the managing agent (“agent”) would need to consider how to deal with the recommendations in the most appropriate way. It is advisable for the landlord/agent to assess the risks in relation to the environment (i.e. communal areas of the building) within which the risk arises, the likelihood of harm being caused and the potential severity of the harm. It may seem obvious that the high risks should be dealt with as a priority. The landlord/agent would need to consider how and whether or not to tackle the low risks. Where there is uncertainty, it is advisable to contact the local Fire and Rescue Authority for further advice.
The Housing Health and Safety Rating System
The Housing Act 2004 (“the 2004 Act”) introduced the Housing Health and Safety Rating System (“HHSRS”) to assess the conditions of homes in England and Wales. It applies to residential premises, meaning; dwellings, individual flats, Houses in Multiple Occupation (HMOs) and common parts of a building containing one or more flats. The HHSRS does not set out the minimum standards that homes must meet. It is concerned with avoiding and minimising potential hazards; for example threats from uncontrolled fire and smoke.
Generally, a basic fire risk assessment undertaken under the 2005 Order will examine the common areas and this may include consideration of individual front entrance doors to flats. Front entrance doors will usually be the most common form of use as an emergency exit route, it makes practical sense for the front entrance doors to be fire-resistant in order to prevent the risk of fire spreading and allow people to leave the building in the safest way possible.
Front entrance doors to flats need to be fire-resistant and self-closing. The required standard is a door which provides 30 minute fire resistance with fire-retardant strips, smoke seals and with a self-closing mechanism.
Front entrance doors to individual flats are often the leaseholder’s responsibility. If the fire risk assessment flags up that the front entrance door is not fire compliant, it would be important to check the lease to see who is responsible for the door.
If leaseholders are responsible for the doors, the landlord would have no immediate legal right to change those doors. Instead they would have to inform the leaseholders and instruct them to change the doors. It would be advisable for the leaseholder to ensure that the doors would perform satisfactorily in the event of a fire.
If the landlord is responsible for the door then they could go ahead and change them. This would often mean leaseholders having to pay for them through the service charge.
There may be no specific reference to fire safety works in the lease. But the freeholder may be able to use other wording in the lease (for example, in a ‘sweeping up’ clause‘) to justify passing on the cost of works to the leaseholders.
ARMA (Association of Residential Managing Agents) have provided useful guidance in their Advice Note on fire doors.
The HHSRS sets out guidance on potential harms and hazards that could be found in any residential premises. The fire door guidance is that summarised as follows:
- doors should be properly constructed/fitted and with self-closers where appropriate
- doors should be fire resistant
Works by landlord
Generally, the landlord would be responsible for carrying out the works recommended by the Fire Risk Assessment. Leaseholders may be required by the terms in their leases to contribute financially towards the works via their service charges
Problems could arise where the fire risk assessment recommends that the landlord carry out works i.e. installation of hard wire alarm systems through individual flats. The difficulty with this is that the lease may not allow the landlord to enter an individual flat to carry out such works. This would mean that the landlord and leaseholder must come to a suitable arrangement (outside the terms of the lease) so that the landlord can comply with the recommendations made by the Fire Risk Assessment.
As of 9th May 2019, the Government announced that around £200 million will be made available to remove and replace unsafe aluminium composite material (ACM) cladding from 156 privately owned high-rise buildings.
Building owners will be able to register for the fund by early July. Upon registration, owners will have 3 months to access the new fund. As a condition of funding, Government will require the building owner to take reasonable steps to recover the costs from those responsible for the presence of the unsafe cladding. The Government will be looking carefully at those who fail to remediate and will consider what further action can be taken.
As a result, costs associated with removing aluminium composite material (ACM) cladding should not be passed onto leaseholders.
Enforcement of fire safety in buildings containing flats
It is essential for anyone living in a building containing flats to report any potential hazards to the landlord/agent so that they can take appropriate action. Should the landlord/agent fail to do what is required, ways are available to ensure fire safety compliance.
For instance, under the 2005 Order, the Fire and Rescue Authority is responsible for enforcing fire safety in the area that the building is in.
Accordingly, the 2005 Order gives the Authority the power to:
- inspect buildings
- make the person responsible for fire safety in the building carry out a fire risk assessment or undertake safety improvements (through an enforcement notice)
- make the person responsible for fire safety tell the Authority about any changes to the building that may increase the risk of fire (through an alterations notice)
- force buildings (or parts of buildings) to close (through a prohibition notice)
Enforcement of fire safety in individual dwellings
The HHSRS is a risk assessment approach to assess hazards to health and safety in dwellings, and on which remedial and enforcement action can be taken, if necessary.
Under the 2004 Act, the local housing authority must inspect properties if they become aware of significant fire hazards. Such authorities have powers of entry for this purpose.