Is it a Landlord’s responsibility to carry out a Fire Safety Assessment?

Specialist solicitor for landlords, Aimee Phillips of Holmes & Hills Solicitors, discusses a landlord's responsibilities in regard to fire safety checks as well as providing an update on what the Fire Safety Act 2021 is and when it will be introduced.

Since the Grenfell Tower tragedy in 2017, the Government have been keen to review fire and building safety standards across the UK and implement reform.

Most notably, the Building (Amendment) Regulations 2018 amended the Building Regulations 2010 to introduce a ban on the use of combustible materials on the exterior of new residential buildings over 18 metres high.

Now, the Fire Safety Act 2021 (“the Act”), which is not yet in force in England but received Royal Assent on 29^th April 2021, is set to amend the Regulatory Reform (Fire Safety) Order 2005 (“the RRFSO”).

What does Fire Safety Act 2021 add to the Regulatory Reform (Fire Safety) Order 2005?

The RRFSO introduced the concept of Responsible Persons and the requirement that they self-assess and mitigate any fire safety risk. Under the RRFSO, the Responsible Person is:

“the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by him of a trade, business, or other undertaking (for profit or not); or the owner, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking.”

However, it is important to remember that these obligations do not apply to domestic premises. Under the RRFSO, a domestic premises is defined as:

“a private dwelling (including any garden, yard, garage, outhouse, or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling)”.

This definition is problematic and has caused significant confusion in terms of which parts of a building are “used in common” and thus fall within the remit of self-assessment and which parts are not “used in common” and therefore do not need to form part of the self-assessment.

The Act now clarifies that where a building contains two or more sets of domestic premises, the areas to which the RRFSO applies include:

1. The building’s structural and external walls (including doors, windows and anything attached to the exterior of those walls such as balconies) and any common parts; and
2. All doors between the domestic premises and common parts.

The Government will be releasing risk-based guidance for Responsible Persons to follow. They can use this guidance as a benchmark for any self-assessments they carry out. If it is alleged that a Responsible Person has breached the RRFSO but the Responsible Person can show that they have followed the guidance then this will establish that there has been no such breach. Similarly, if it is alleged that a Responsible Person has breached the RRFSO and the Responsible Person cannot show that they have followed the guidance then this will establish there was a contravention and this can be relied upon in criminal proceedings against them.

What effect will this have on landlords?

Landlords fall within the above-mentioned definition of Responsible Persons (as well as managing agents and owners) and are now required to carry out a fire risk assessment in relation to the common parts of a building and implement any changes to mitigate risk.

Those who have already carried out assessments will need to review and possibly update them so that they comply with the Act. Although there are no specific time periods in relation to how often these assessments need to be reviewed, the RRFSO states they must be reviewed “regularly”. This will reduce the risk of prosecution.

Landlords should beware that the clarification of the common parts means the Fire and Rescue Authorities can now better identify the Responsible Person for these parts, making enforcement action and/or prosecution easier for them to pursue.

Fortunately for landlords, the Act remains silent on the issue of costs. Therefore, there is nothing preventing landlords from recovering the cost of these fire risk assessments and any remedial work through increased service charge, though this may cause tenants generally to re-think the prospect of entering into a lease in a block of flats.

What effect will this have on tenants?

Unfortunately, though tenants will inevitably feel safer in their homes, that will most likely come at a cost to them. The House of Lords urged the Government to protect tenants financially by making it impossible for landlords to recover these costs in the form of increased service charges however their efforts failed and the Government passed the Act without such protection.

If you are entering into a lease of a property with service charge liability, be sure to check the terms of your lease, particularly those relating to service charge. In the alternative, you can instruct us at Holmes and Hills Solicitors to assist you in reviewing your lease to ensure you are not disadvantaged by a service charge provision that may inadvertently include a fire safety assessment.

Most importantly, if you have any concerns regarding the safety of the building, contact your landlord or the building owner in the first instance. If you are still concerned, contact your local authority or the Fire and Rescue Authority. If you do not feel the issue has been sufficiently dealt with, you can contact the Ministry of Housing, Communities, and Local Government building safety team.

If you require assistance in arranging a fire safety assessment or legal advice in relation to a landlord and tenant dispute, we can assist you by dealing with the relevant responses and providing you with legal advice to ensure you are not found to be in breach of the RRFSO as well as ensuring your leases have correct clauses in regard to costs.