Residential Fire Issue- who gets prosecuted?

[CivvyFSO]

Then the landlord doesnt have an adequate system in place - nick him

They could simply state that they do not have control over that area.

[Midland Retty]

To come back to the original question I think we would all agree that the EA would always start action against the freeholder. Then pursue the leaseholder(s) - if it could be proven that the leaseholder(s) caused the freeholder to fail to comply under article 32(2)(10).

In this scenario and strictly in my opinion I think that it may not necessarily be the leaseholders that have caused those failures in the first instance. It was through act or omission that the freeholder has, by default, caused the situation that prevails by failing to make provision for a suitable system of maintenance for the sprinkler systems, which then also compromises the communal means of escape.

[Dinnertime Dave]

In this scenario and strictly in my opinion I think that it may not necessarily be the leaseholders that have caused those failures in the first instance. It was through act or omission that the freeholder has, by default, caused the situation that prevails by failing to make provision for a suitable system of maintenance for the sprinkler systems, which then also compromises the communal means of escape.

Not just your opinion I am sure a few people share it. Unfortunately it all goes back to the BCO/AI who accepted it and the perhaps FSO  who didn`t question a design that relies on an unrealistic and unsustainable management regime.

[AnthonyB]

An interesting debate!

I will add to the scenario tomorrow following a site meeting with the FRS.

The managing agent & myself both agree the systems should be serviced, have tried arranging access via writing and are at a dead end, they are trying their best and didn't build the place, have inherited the issues.

If anything it further jades my view of engineered solutions and makes me want to hark back to prescription - they are good on paper for the designer which can then let their imagination run wild, but with no thought to ongoing maintenance or redundancy.

There is potential for this job to go big and everyone end up reading about it in info4fire, test case time beckons! (If so it's thread locked time until resolved...)

[wee brian]

Then the landlord doesnt have an adequate system in place - nick him

They could simply state that they do not have control over that area.

But they are responsible for people in the common parts - if they havent got an adequate system in place and cant ensure that the escape routes are properly maintained then they will have to do something else.

This is similar to the problem we used to get with reciprocal escape routes from landlocked sites in London. If a neighbouring premises (Call it A) blocks an escape route from an ajoining building (B) that passes through their domain (because they don't need it any more). then it is the Neighbour (B) (who no longer has an adequate escape route) who needs to do something.

[CivvyFSO]

I don't think it is similar to that at all. This is something with a specific part of the RRFSO inserted for the exact purpose of attempting to ensure that such maintenance can take place.

One option to avoid having to wait for a fire and a potential offence may be to enforce a suitable system of maintenance in order to protect the common areas, then in 3 months (or whatever timeframe) when the parts of the system are still not maintained, go for non-complaince with the notice. If the RP can demonstrate that they have shown due diligence and made every effort to comply, then the non-compliance is due to the default of the tenant, therefore 32(10) applies. Hey-presto, relatively straightforward offences all directed at the tenant(s).

[wee brian]

Yes, that's what I meant.

[Midland Retty]

Civvy is correct that this isn't like a Wayleave agreement scenario.

Wee B however is correct that the Freeholder could reasonably seek to resolve the problem by implementing other measures in the communal areas.

However I find it hard to believe in the real world that if the managing agents have written to all residents explaining the reasons why access for maintenance is required, that they would refuse on mass. You will get the odd tenant here or there who may refuse, but in my experience it is unlikely all of them would.

If it is the case that all residents have refused then it would be easier for all concerned (the residents, managing agents, the EA) if the freeholder bites the bullet, and accepts other measures will be needed in the communal areas.

[tmprojects]

Although it is possible for the RP to resolve the matter in other ways, why should he incure that hassle and cost?

If he has a perfectly good system. But is unable to maintain it because of the occupiers, and he can prove that, then the Enorcing Authority should persue the occupiers as it is they who are causing the offence. regardless if it is 2 or 200 residents.

expecting the RP to deal with it in other ways seems to me like a bit of a cop out/easy option.

[Rex]

It's a mess. If in hindsight [a wonderful thing] Scottish Law was applicable see below, could the Residential Fire Issue have been sorted at planning stage?

Maintenance Domestic Sprinkler Systems
Auto-suppression systems require maintenance and it is essential that systems once installed are regularly checked and maintained. It may be that the requirement to provide such maintenance is made a legal obligation on the owner by the addition of a Continuing Requirement when the completion certificate is accepted by the verifier (under section 22 of the Building (Scotland) Act 2003). Failure to comply with such a Continuing Requirement could lead to enforcement proceeding being taken and might mean that the premises could not be legally occupied.

Rex.

[kurnal]

Perhpas but Scottish Law is very different and the Fire Scotland Act classes the Communal areas of blocks of flats as domestic premises. They do have other tools in the bag though for the protection of firefighters.

I bett you with their diligent application of their technical building standards they would not have got in this mess......though looking at the Parliament building.....

[Midland Retty]

Expecting the RP to deal with it in other ways seems to me like a bit of a cop out/easy option.

Do you think any EA has the resources to deal with action against 200+ residents?

Enforcing upon 200 + residents when the RP should have got it's act together and implemented sufficient maintain regime via the lease agreement in the first place, also seems like a cop out.

And in my humble opinion I rather think the courts would agree.

Lets not get too teary eyed about the poor old RP Im sure you will find that there is something in the lease agreement to allow it to re-coup costs from the leaseholders for works to implement any additional measures. Funny how things like that don't get missed from lease hold agreements isn't it!

[wee brian]

expecting the RP to deal with it in other ways seems to me like a bit of a cop out/easy option.

Whats wrong with adopting an easy solution? The enforcers are there to enforce not pussy foot around trying to keep everybody happy. The RP has several options - what the enforcers has to do is ensure that doing nothing is not one of them.

[AnthonyB]

This is what has been agreed (begrudgingly to stave off immediate notice).

All unsold flats to have leases rewritten with a more robust and specific clause re sprinkler access.

Freeholder to continue to service vacant flats and try to access occupied with clear paper trail of efforts.

Where all attempts to service a flats system fail due to lack of access FRS to be informed in order to send CFS team to try and 'persuade' them to see sense.

If this doesn't work Freeholder will be served notice and go to court and use 'due diligence' defence with paper trail and evidence of early FRS involvement, if this convinces the magistrate, then the FRS go for the flat owner under 32(2)(10). if the freeholder looses they get a conviction and have to start taking civil action to boot doors in!

[Midland Retty]

Seems sensible(ish).

I think I'd have more sympathy (and perhaps a different opinion of the situation) if the freeholder had got their act together in the first place and issued lease agreements with the necessary access rights to maintain the system. But it's time I changed the record!

As you say Anthony the rest will be down to the Magistrate to decide.