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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: kurnal on March 24, 2010, 07:30:40 AM
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We have already discussed the responsibilities of landlords and tenants in Multiple occupied buildings under the Fire Safety Order. But heres a new twist and I would be grateful to hear your views.
Consider two shops in a multi occupied block. Each shop has an extensive basement and there is a fire exit door from each passing into the other. Means of escape from either basement would be unsatisfactory without the pass door.
How many Responsible Persons have duties to ensure the door and escape routes beyond the door through each demise are always available for use?
Occupiers A and B certainly, but as these routes are used by more than one tenant do you think the landlord has any responsibilities under the Fire Safety Order?
Could the duty of the Landlord "to the extent that they have control" be dealt with simply by a clause in the tenancy agreement without any monitoring by the Landlord?
If someone was hurt as a result of the door being locked by one tenant and obstructed by the other how many people would be in the dock?
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I think your right in what you say Kurnal.
Is it reasonable for the landlord to have control over this door? I would suggest that it is proberly is not.
Of course there could be an exception where the door is faulty and it has been reported (where this responsibility falls to the landlord of course).
Good solid agreements in place with art22 between the 2 occupiers seems the logical way forward to me.
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I would say it is reasonable for the landlord to put some form of clause in the tenancy agreement.
Or looking at it from another angle the landlord could advise both tenants that the basement can not be used UNLESS they both arrange for a wayleave agreement to be drawn up between themselves to ensure the pass door is always available for use.
You mention common areas in the title but dont forget the basements would not be classed as common areas in this instance. Instead tenants are crossing over directly into each others occupancy, there is no common area involved, which puts a slightly different slant on things, particularly who would be culpable.
If anything were to happen who would be in the dock?
Answer is both tenants most probably. The landlord would also be investigated but I doubt any action would be taken against him / her .
If Tenant A obstructs the pass door then clearly that would be a serious case offence (if anyone were to be serious injured or killed).
But is it unreasonable to expect Tenant B to undertake regular checks to ensure the door is available, and if not take interim measures to address the problem? (i.e; restrict the use of the basement) - So Tenant B might equally be held responsible.
Conversely if Tenant B did his daily check and found the door to open and available, but an hour later Tenant A blocks it and someone was injured as a result, you could argue Tenant B would not be held responsible.
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Agree the above comments. The landlord cannot permit the areas to be used without both parties agreeing the use of the central door and continuimg to do so whilst renting the premises.
If one of the shops has "explosive atmospheres" or, in my opinion, sells fireworks during the permitted periods and stores them in the cellar we may need to look at Art 22 (2) placing the onus of responsibility on the landlord.
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Yes thanks I agree with most of your replies. My gut feeling is that these do not feel like common areas but I think that the landlord, having put a condition in the tenancy agreement of both of his tenants is then really duty bound under the Order to ensure that the condition is being complied with and to take action if one is not? In most such cases I guess only the Landlord has the right of access to both sides of the door to ensure compliance and one tenant has no idea what is going on on the other side.
Now whose job is it to install test and maintain the emergency escape lighting and signage?
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Not common areas, but would be mentioned in passing in the MoE section of the Landlord's part of our report as well as in the audit forms for each tenant, so that they are aware both to write to existing tenants but also so they can inform new tenants of their responsibilities on occupancy.
Lighting and signage is up to the tenants alone - lighting would be off each unit's lighting circuit (which they have control over, not the landlord) and it's the tenant's walls that would having the signs on.
At the end of the day the tenants as responsible persons should be doing FRA's (even if not written due to staffing numbers) and determining all this - they could decide that they do not need those routes and do away with them if they wish (on their heads of course if it all goes Pete Tong). The landlord can advise and suggest, but in this situation it shouldn't go beyond that - if they are really worried about the tenants failings they should complain to the enforcing authority.
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Yes thanks I agree with most of your replies. My gut feeling is that these do not feel like common areas but I think that the landlord, having put a condition in the tenancy agreement of both of his tenants is then really duty bound under the Order to ensure that the condition is being complied with and to take action if one is not? In most such cases I guess only the Landlord has the right of access to both sides of the door to ensure compliance and one tenant has no idea what is going on on the other side.
Now whose job is it to install test and maintain the emergency escape lighting and signage?
I think you need to be careful with that Kurnal. To try and ratify the problem you firstly need to look at who has to any degree control over those premises.
There are definately no communal areas in the scenario you give. Therefore each individual area is under the full control of each individual tenant.
Both tenants have the ability to keep the pass door open and available under their control. They don't need the landlord to do that.
OK one tenant could block the pass door causing a problem for the other tenant. The agrieved tenant may then contact the landlord and complain but dependant on the terms of the lease agreement the landlord may say " Not my problem - sort it out between yourselves?"
If that is the case the agreaved tenant may be stuck and may therefore need to implement interim measures (ie restrict the use of the basement for his or her staff) Again it comes back to control.
The tenants have sufficient control to implement interim measures if required, the tenants have sufficient control over the pass door. I deem them both to be RPs in this example, not the landlord.
In terms of signage and lighting, each tenant would be responsible for it in their respective parts of the basement.
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Yes thanks I agree with most of your replies. My gut feeling is that these do not feel like common areas but I think that the landlord, having put a condition in the tenancy agreement of both of his tenants is then really duty bound under the Order to ensure that the condition is being complied with and to take action if one is not? In most such cases I guess only the Landlord has the right of access to both sides of the door to ensure compliance and one tenant has no idea what is going on on the other side.
Now whose job is it to install test and maintain the emergency escape lighting and signage?
I think you need to be careful with that Kurnal. You need to look at who has to any degree control over those premises.
There are definately no communal areas in the scenario you give. Therefore each individual area is under the full control of each individual tenant.
Both tenants have the ability to keep the pass door open and available within their control,. They don't need the landlord to do that.
OK one tenant could block the pass door causing a problem for the other tenant. The agrieved tenant may then contact the landlord and complain but dependant on the terms of the lease agreement the landlord may say " Not my problem - sort it out between yourselves?"
If that is the case the agreaved tenant may be stuck and may therefore need to implement interim measures (ie restrict the use of the basement for his or her staff) Again it comes back to control.
The tenants have sufficient control to implement interim measures if required, the tenants have sufficient control over the pass door. I deem them both to be RPs in this example, not the landlord.
In terms of signage and lighting, each tenant would be responsible for it in their respective parts of the basement.
Is the room with the final exit, lets call it the access room, not common to both as a means of escape whereas the inner room is not.
What you seem to be implying MR is that there should be a quota of tenants who must use an area before it becomes "common".
Are we too used to seeing common areas as stairways, corridors and circulation spaces?
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No, not in this particular scenario
I see where you are coming from NT, and for something to be a common or communal area does not depend on a set amount of people from different tenancies using it (but clearly you would need more that one occupany), instead a communal area is generally an area that tenants do not have any control over.
In the Profs' example you have two shops both with a basement. In between both shops at basement level is a party wall. And in the party wall there is a pass door. In this scenario therefore you do not have a communal area, because during normal times both tenants use their basements as their own space, no one else normally has access to that area except in an emergency.
Also each individual tenant controls their part of the basement and unless some agreement is in place either one of the tenants could quite freely obstruct the pass door and place the other tenants in contravention of the Fire Safety Order.
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A question then, who controls the EEL, the FA and fire safety devices, including the doors and who has responsibilty for them? Under the order, the definition of a premises includes the definition of a workplace and that includes ingress and egress for the relevant people and therefore the tenant has some reponsibility to ensure that the access is available all the time. It is not only common areas that are included but common systems as well and therefore Kurnal is correct that in the case above the Landlord would have reponsibility as well.
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Where is the common system in the original example? EL is off each tenants lighting ring and distribution board, the door belongs to whomever the lease identifies (or jointly) and there is no description of a fire alarm.
If the shops are part of a larger building and the shops are directly off the central panel there is a definite landlord responsibility there as the landlord has control. If the shops have their own separate systems then it's the tenants responsibility, with the landlord only needing to determine if they need interfacing with the central system, but not being responsible for maintenance.
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Yes Thanks Anthony I did not mention the fire alarm.
For the purpose of the point I was seeking to explore, the fire alarm is not relevant as in most such arrangements the shops have their own stand alone systems interfaced to the landlords system.
So the point I was primarily interested in concerns only the pass door and the role of the landlord. The pass door between two tenants basement stockrooms- both rabbit warrens - were marked exit but were locked bolted and secured from both sides by both tenants.
The landlord was adamant it was not his responsibility. He did not want me to go down there but I insisted because it lies under the common exit routes from the upper floors and I needed to see the state of the fire protection to the underside of the escape route.
Having seen the locked doors and having tried to educate the tenants both sides without success I believe that the landlord has a duty to audit and police his tenants compliance with their tenancy agreements - I believe that this is a matter within his control under the meaning of the Fire Safety Order.
The landlord and managing Agent are adamant that they have no such duty and it is soley between the tenants. I wanted opinions on this.
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Having seen the locked doors and having tried to educate the tenants both sides without success I believe that the landlord has a duty to audit and police his tenants compliance with their tenancy agreements - I believe that this is a matter within his control under the meaning of the Fire Safety Order.
The landlord and managing Agent are adamant that they have no such duty and it is solely between the tenants. I wanted opinions on this.
Does the tenancy agreement say that this emergency door should be kept available or such clauses that require this. If it does then I would agree if it doesn't how would the landlord enforce it, surely its up to the two tenants to comply with the RRFSO and the FRS to enforce it
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It probably would depend on the tenancy agreement to some extent, as this directly effects the level of control excercised by each occupier or tenant.
However it still doesn't preclude both occupiers from undertaking their duties under the order - particularly Article 22 (co-operation and co-ordination) and also remember that the tenancy agreement wouldn't effect their "responsible person" status under Article 3 either.
Take the landlord out of the equation for a moment and imagine Tenant A blocks the pass door, thus effecting Tenant B's means of escape.
Unless some form of formal agreement is in place stating the pass door must be kept available at all times, Tenant B would need to take interim measures to address the inadequate means of escape.
It doesn't require the landlord to take interim measures. Tenant B has within their control the ability to take interim measures, and should do so immediately - it is their duty under the RRO.
They certianly shouldn't be waiting for the landlord to sort it out. What happens if the landlord is uncontactable? - Are we saying Tenant B is within their rights let staff work down in the basement knowing the pass door isn't available until the landlord is contacted ? Of course not !
Even if Tenant A contravened a clause in the tenancy agreement by blocking the pass door it doesn't let Tenant B off the hook. Tenant B should still be taking interim measures until the matter is resolved (either by the Landlords' intervention or not).
So in short Kurnal apply article 3 - I think you will find that the tenants are the RPs in this scenario.
Secondly consider Art 22 - and remember that the two occupiers may have consulted with each other but dont necessarily have to agree with one another.
If tenant A asked tenant B if they can use the escape route through their basement, and tenant B refuses, then Tenant A will have to think of alternatives. There is nothing in law which states Tenant B must provide that route for Tenant A - UNLESS of course there is some form of wayleave or formal agreement drawn up or alr
eady in place.
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Cheers Retty that has cleared it up for me. I reviewed article 3 and conclude that the tennants are reponsible persons not the landlord.
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Thanks for your input. I realise I have a habit of labouring these issues to the point of irritation and if you have reached this threshold please forgive me.
But I still think the Landlord has an element of control and could be found wanting unless they put measures in place to audit the activities of the tenants.
Yes if there is no clause in the tenancy agreements he is probably on a sticky wicket but I think any diligent landlord would put such conditions and monitoring in place.
Otherwise when disputes arise he just slopes shoulders and says tough its your problem nowt to do with me- complain to the fire authority and they will do my dirty work for me. Thats the position of the current managing agent. Thanks for your rent, heres your unit theres your exit but dont come moaning to me if the chap on the other side has locked it. Ker-ching.
Now as I said the cellars actually run under the common escape routes so it may also be reasonable for the Landlord to check the condition of the fire resisting ceiling in the let basements?
Anthony raised the issue of maintenance of a common fire alarm which would clearly be the remit of the Landlord. I see the ceiling in exactly the same way. The ceiling is a common element just like a shared staircase.
So taking it further why is the Landlord a Responsible Person in respect of the fire alarm and the ceiling but not in respect of an exit door between two tenancies?
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In your Scenerio I would also want to visit the units and would also comment on the exit and yes some LL's/agents would rather I didn't. Many of ours would be interested and would show due diligence by corresponding with the tenants although ultimately it isn't strictly their problem.
The fire alarm and ceiling issues would affect the main building above and the LLrd would have interest as a relevant party as it would could affect their areas - but an exit serving two independent units would only ever affect those two units.
If you wanted to give the landlord due diligence responsibilities over all parts of a multi-occupancy then you are back to issuing them a fire certificate with occupiers holding subordinate copies relevant to their area.
In those days a landlord had to have some oversight over the whole building as often they would land a copy of the notice or goodwill letter in addition to (or sometimes more rarely instead of)the occupants even when the source of the problem was in their tenants area. One landlord even got prosecuted & lost their subsequent appeal for fire cert breaches in a premises where every breach was in a tenants area, not a communal one.
But whilst you have responsibility determined by employment or control you are always going to get a potentially confusing mish-mash of different responsibilities for different elements in the multi-occupancy.
I regularly have to refer back to leases and trace wiring and distribution boards in a building (or at least require this be done) to determine who looks after what.
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Thanks for your input. I realise I have a habit of labouring these issues to the point of irritation and if you have reached this threshold please forgive me.
But I still think the Landlord has an element of control and could be found wanting unless they put measures in place to audit the activities of the tenants.
Yes if there is no clause in the tenancy agreements he is probably on a sticky wicket but I think any diligent landlord would put such conditions and monitoring in place.
Otherwise when disputes arise he just slopes shoulders and says tough its your problem nowt to do with me- complain to the fire authority and they will do my dirty work for me. Thats the position of the current managing agent. Thanks for your rent, heres your unit theres your exit but dont come moaning to me if the chap on the other side has locked it. Ker-ching.
Now as I said the cellars actually run under the common escape routes so it may also be reasonable for the Landlord to check the condition of the fire resisting ceiling in the let basements?
Anthony raised the issue of maintenance of a common fire alarm which would clearly be the remit of the Landlord. I see the ceiling in exactly the same way. The ceiling is a common element just like a shared staircase.
So taking it further why is the Landlord a Responsible Person in respect of the fire alarm and the ceiling but not in respect of an exit door between two tenancies?
Labouring the point? Nah
But I have to say I do think you are totally wrong in your assumption.
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So taking it further why is the Landlord a Responsible Person in respect of the fire alarm and the ceiling but not in respect of an exit door between two tenancies?
I think we have had this discussion before Kurnal and IMO the landlord is not the Responsible Person as regards to the fire alarm he is an "other person" (5.3)(5.4) and can be prosecuted under art 32(10). He is not a RP because it is definably a workplace which extends to the common area to the front door. (see definition of workplace)
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Thanks for your input. I realise I have a habit of labouring these issues to the point of irritation and if you have reached this threshold please forgive me.
Not at all - its good to have debate and discussion on things like this
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what if the door is a common area and in itself it is not a workplace then under A5,2 the RP must ensure it is correct. Unless a lease states otherwise then the RP is the person who has control or the owner. this would make the employers RPs under either A 5,3 or 5,4.
But the owner as the person who has control is the RP.
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what if the door is a common area and in itself it is not a workplace
What part of the common area would not be a workplace. (Check out definition of a workplace art 2 Interpretation)
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Thomas I thank you for your diligence in correcting my careless use of what is after all a legal definiton. You are absolutely right in your interpretation of articles 3 and 5 and yes we did discuss all this to a conclusion in the past.
Why do so many of us keep falling into this trap and use the term responsible Person so carelessly? Well in defence I would point out that the Order itself leads us into doing it, because article 3 defines the responsible person and article 5 imposes the duties of the responsible person under articles 8 to 22 on "other persons" without defining them again. Note that nowhere in the Order do any of the definitions have a capital letters so it can be quite difficult to identify the context as a legal definition.
We then see the term responsible person repeated in each article time and again, when they really mean dutyholder, and that would have made life so much clearer.
This is clarified in Guidance note No 1
"Article 5(3) extends the responsible person’s duties to include any other person to the extent
that they have control of the premises. Under Article 5(4) any person who by virtue of any contract or tenancy has obligations of any extent in respect of maintenance of the premises (and anything in them) or the safety of the premises is to be treated to that extent as a person who has control for the purposes of Article 5(3). Enforcing
authorities should note that due to the reference to the term “any contract” is not intended to be limited to those in respect of the occupation of property, eg a lease or licence to occupy, but would include, for example, a contract for the installation and/or maintenance of a fire alarm system or a fire sprinkler system."
39. In many cases there will be more than one person subject to the obligations of a responsible person for premises. The level of responsibility will vary according to the employment position (total responsibility for an employer) and the degree to which the eperson can exercise control over safety in the premises. This is a deliberate aspect of the Order to allow enforcement action to be taken against the person who is culpable and/or in a position to remedy contraventions."
In the case in point:
The Responsible Person is the employer (i.e. each shop keeper) in accordance with article 3 and on the face of it the Landlord is just another person who has to some extent control of the premises (Article 5(3) ). The Landlord (5(3)) has some obligations for the maintenance, safety and repair of the premises in that they choose tenants, instruct new tenants on the safety arrangements, carry out regular condition surveys and charge remedial work to the tenants. (article 5(4))
............... but ..................
The managing agent is also an employer- a very large one in this case- and receives the rack rent, (definitions "Owner") may employ the cleaning staff in the common areas and certainly employs agents to liaise with the tenants, inspect defects and carry out condition surveys from time to time. Oh dear. Still I guess I have answered my own question.
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Alan I fully agree with you and I believe the Scottish and NI legislation is much better on this point, despite previously arguing the contrary with CT, who is usually right, I think. :'(