29 May 2018

Fire safety in residential properties

This article looks at the current fire safety regulations in respect of residential property in England. There is no single item of legislation that applies but rather a myriad of regulations which have arisen over the years. Some apply to all dwellings where as others will apply only to certain parts of buildings or to certain types of occupation. The recent tragedy at Grenfell Tower will also likely instigate an overhaul of fire safety measures.

All residential dwellings

As a general rule ‘an Englishman’s home is his castle’. The head of the household has a duty and responsibility for looking after the family consequently it is considered that no legislation will ever be required for existing homes. However the following apply:

Building Regulations

Building Regulations 2010 (BR) apply to most dwellings where building work is being carried out.

The function of the Building Regulations is principally to ensure the health and safety of people in and around buildings. They provide a minimum standard relating to the construction and alteration of premises, and include fire safety requirements.

Housing Health & Safety Rating System ("HHSRS")

The HHSRS apply to all dwellings but with a focus on the private rental sector. The HHSRS is a risk-based evaluation tool to help local authorities identify and protect against potential risks to health and safety. Fire is included in the 29 hazards covered by the system which was introduced by Housing Act 2004.

A risk assessment looks at the likelihood of an incident arising from the condition of the property and the likely harmful outcome.

For both categories of hazard various enforcement options are available: a local authority may serve an improvement notice requiring the responsible person to carry out works; make a prohibition order prohibiting the use of part or all of the premises for various specified purposes; serve a hazard awareness notice which is a purely advisory action where the local authority notifies the person responsible of the need for improvements.

Discretionary enforcement options are also available for ‘Category One hazards’ only where they present an imminent risk of serious harm to occupiers including emergency remedial action where local authorities can themselves take remedial action to remove a hazard and recover reasonable expenses or emergency prohibition order where the local authority can prohibit the use of all or part of a property.

Additional Regulations for Rented Properties

In addition to the above regulation, which apply to all dwellings, rented property in England is subject to the following legislation to mitigate fire risk and landlords and managing agents should ensure that their properties are compliant.

Smoke and carbon monoxide alarms

The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 apply to all rented dwellings. All landlords of private sector properties in England must ensure that a smoke alarm is installed on each storey of the property that is used wholly or partly as living accommodation and that a carbon monoxide alarm is installed in any room that is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance.

The Furniture and Furnishings (Fire) (Safety) Regulations 1988

The Furniture and Furnishings (Fire) (Safety) Regulations 1988 set levels of fire resistance for domestic upholstered furniture, furnishings and other products containing upholstery. The regulations cover most items of furniture found in rented accommodation including beds, mattresses, pillows and cushions but do not apply to carpets, curtains or duvets or to furniture made before 1950 or to re-upholstered furniture made before that date.

The regulations apply to all persons who supply furniture and furnishings in connection with accommodation in the course of a business. In general, this includes landlords, letting agents and managing agents. Landlords and managing agents must ensure that the furniture supplied meets the fire resistance requirements, and the only practical way of doing so is to ensure that the furniture is labelled by the manufacturer in this way. If this cannot be ascertained, the furniture should be replaced.

The Gas Safety (Installation and Use) Regulations 1998

The Gas Safety (Installation and Use) Regulations 1998 deal with the installation, maintenance and use of gas appliances, fittings and flues in domestic premises. They place duties on landlords of leases for a term of less than 7 years to ensure that gas appliances, fittings and flues provided for tenants’ use are safe.

Landlords must ensure that gas fittings and flues are maintained in a safe condition. Gas appliances should be serviced in accordance with the manufacturer’s instructions. If these are not available, then it is recommended that they are serviced annually.

Landlords must ensure that a gas safety check is carried out annually on each gas appliance/flue. Before any new tenancy starts they must make sure that such a check has been carried out within one year before the start of the tenancy. A record of each gas safety check must be kept for at least two years and a copy must be given to existing tenants within 28 days of the check being completed, or to any new tenant before they move in.

Electrical Equipment (Safety) Regulations 1994

The regulations require that all electrical equipment supplied by landlords is safe. In measuring safety, the landlord or managing/letting agent needs to ensure that the equipment complies with current UK requirements for safety of domestic electrical products. There is no mandatory requirement for the equipment to undergo any safety testing, but regulations require that any equipment supplied after 9 January 1995 shall be marked with the appropriate CE symbol. Where the safe use of the equipment relies upon the user being aware of any particular characteristic, suitable information or instruction booklets should be provided.

The legislation discussed so far is intended only do deal with issues associated with fire risk. There are various additional bureaucratic hoops to jump through when granting a tenancy and which require careful consideration. The penalties for failing to comply are significant in many cases.

Houses in Multiple Occupation

Where a property is to be used as a House in Multiple Occupation (HMO) in may need to be licenced under the Housing Act 2004, which it itself can create additional fire safety requirements.

A local authority cannot approve an application for an HMO licence until it is satisfied that the HMO meets prescribed standards under the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006. The standards require that “appropriate fire precaution facilities and equipment must be provided of such type, number and location as is considered necessary”.

When granting a licence the local authority must attach certain mandatory conditions which include ensuring that smoke alarms are installed in the house and to keep them in proper working order. The local authority also has discretion to attach other conditions requiring facilities and equipment to be made available for the purpose of meeting standards prescribed by the above regulations.

All HMOs are also subject to legislation about how they are managed which is contained in the Management of Houses in Multiple Occupation (England) Regulations 2006. These place certain duties on the individuals managing the property, including to ensure that all fire escapes are clear of any obstacles and that they are kept in good order, to ensure that all fire safety measures are maintained in good working order and that adequate fire safety measures are in place with regards to the design, structural conditions and number of occupiers in the HMO.

Common Parts

Although the fire safety requirements in the Regulatory Reform (Fire Safety) Order 2005 (RRO) do not apply to most domestic premises they will apply to the communal parts of residential properties and certain other premises that, although containing residential accommodation, are still caught. These would include guest accommodation, halls of residence and residential care premises.

Under the RRO the ‘responsible person’ is required to carry out an assessment of the risks from fire, to identify what general fire precautions are required for those particular premises put in place appropriate fire safety arrangements.

The ‘responsible person’ is the person who has control of the premises (whether the occupier or owner of the premises or not) for the purpose of a trade, business or undertaking (whether or not for profit). Otherwise, the obligation falls on the owner, for example, in the case of a newly constructed building which has yet to be occupied. In the context of the RRO "owner" means the person receiving the rack rent, or who would receive rack rent if the premises were let on that basis. This means that obligations that fall on the "owner" will not necessarily only apply to the freeholder and could be the responsibility of someone with a leasehold interest or a mortgagee in possession.

Any person who has control of the premises is also obliged to comply with the duties. Those with obligations under a lease or any other contractual agreement for maintenance or safety of the premises are treated as having control of the premises for these purposes. This means that, depending on the terms of their appointments, managing agents and those with maintenance contracts for the premises may have duties under the RRO.

The RRO therefore creates a number of considerations for lease drafting for practitioners including:

  • The landlord should ensure that access to other premises is available where this is necessary to maintain any fire safety provisions that extend from the common parts to individual premises.
  • It is becoming increasingly common to include lease provisions that set out responsibilities of both parties and oblige the tenant to cooperate with the landlord on fire safety issues. This therefore goes beyond the general covenant within a lease to comply with statutory requirements.
  • Landlords should also consider recovering the cost of compliance with the requirements of the RRO in relation to the common parts via the service charge.

A purchaser's duties under the RRO will start from completion of the transaction. There is no grace period allowed. Therefore, as part of the general property investigation, it is necessary for a practitioner to obtain as much information as possible about fire safety risks at the premises in advance. While practitioners will need to make certain enquiries and investigations into fire safety, the purchaser should be reminded that we, as solicitors, do not have the necessary expertise to advise on fire safety matters. It is important that fire safety issues should also be investigated by the purchaser and, ideally, a building surveyor instructed to act on the their behalf.

In terms of enforcement a notice may be served if the enforcing authority believes that the responsible person or any other person with duties under the RRO have failed to comply. A prohibition notice may be served if the enforcing authority believes that the use of the premises involves or will involve a risk to relevant persons that is so serious that such use should be prohibited or restricted. Failing to comply with the requirements of the RRO where the failure places people at risk of death or serious personal injury in case of fire or failing to comply with any requirement imposed by an enforcement notice is an offence and may result in a fine or even imprisonment.

Grenfell Tower

The Grenfell Tower fire raised concerns about the adequacy of the Building Regulations. To address these the government set up the Grenfell Tower public inquiry. The Phase 1 hearings will commence shortly and end in October of this year. An interim report will then follow. These will focus on the factual narrative of the events of the night of 14 June 2017. This Phase will not examine the reasons why things happened as they did or what should have happened, nor will it assess any arrangements, decisions, regulations or policies.

An independent review looking at current Building Regulations and fire safety, with a particular focus on high-rise residential buildings, published its interim report in December 2017 which found that the current regulatory system for ensuring fire safety in high-rise and complex buildings is "not fit for purpose".

The full report published May 2018 proposes a new regulatory framework which is to be ‘truly outcomes based’. This acknowledges that prescriptive regulation and guidance may not be helpful in designing and constructing complex buildings in an environment where technology and practices continue to evolve.

The new regulatory framework focuses, in the first instance, on multi-occupancy higher risk residential buildings, a new Joint Competent Authority to oversee better management of safety risks in these buildings and a mandatory incident reporting mechanism. Other proposals include improving the focus on building safety during the design, construction, refurbishment and occupation phases, giving residents a greater voice and creating a more robust and transparent construction products regime.

The report has already met with criticism for its lack of prescriptiveness in particular by failing to ban flammable cladding, a move criticised by Grenfell survivors. Although Dame Judith’s response was that prohibiting certain practices would "not address the root causes".

Costs

The cost of complying with fire safety regulations will become an increasingly important topic over the coming months. Landlords will be looking to recover the cost of this through the service charge and in one recent case the leasehold residents of a Croydon housing block were ordered pay almost £500,000 to have potentially hazardous cladding removed. The ruling was a defeat for residents who claimed that the bill was not “reasonable” – not because it is too high, but because it is too low.

There are likely to be many such disputes over who should pay to ensure compliance with fire safety. Although the general thinking is if the landlord is obliged to carry out the works the tenants will normally be obliged to fund it but attention will need to be given to service charge provisions of the lease. An obligation on the part of the landlord to keep the premises in good ‘condition’ as opposed to good ‘repair’ might be relevant for example. Where the former applies the landlord can carry out works beyond mere repair and implies a duty to put the property into a good and tenantable condition if it was not in such a condition, which might include replacement of dangerous cladding. They could then recoup the cost through service charge. An obligation to keep in good repair may not cover such a cost as the cladding (in our example) is not in disrepair.

The existing fire safety regime for residential property in England is not clearly codified and different rules will apply depending upon the use and part of the property. In the wake of the Grenfell tragedy we are likely to see an overhaul of the fire safety regime and in particular Building Regulations to ensure this does not happen again.

Adam is a senior associate in our Residential Property team.

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