Managing Agents

[The Colonel]

Came across something that I had not heard of the other day whilst undertaking a fire risk assessment on a 3 floor communal area to flats. Leaseholder whom I was assessing for to aid a sale informed me that the freeholder had appointed a managing agent to deal with the premises. When questioning the leaseholder as to why no action had been taken by the managing agent to complete the FRA, they informed the leaseholder that a clause is in the lease making the lease holders responsible for fire safety and not the freeholder or managing agent. Is this possible and more importantly legal, can the do it under the RRO.

[Tom Sutton]

IMO the solicitor who inserted the clause has no idea about the RR(FS)O, the flat is a domestic premises and exempt from the FSO(art2). The common areas are subject to the RR(FS)O and as there are no employers the owner/freeholder or the managing agent (person having control of the premises) is the RP. (art3) The RP is the person or persons responsible for implementing the order which includes conducting a FRA. (art5) How they distribute the cost is another matter and I believe this could be included in the tenants agreement most flat owners have to pay a service charge.

[Fishy]

Interesting... I'm no lawyer, but perhaps it's possible?

Under English fire safety law, the Responsible Person's duties tend to be constrained by the extent they have 'control' over the premises (Article 3 of the RR(FS)O).  If, via contract, the freeholder / managing agent give the tenants a significant degree of 'control' over fire safety via lease agreements or other forms of contract, in my mind they might become RPs, even if the Order does not apply within their dwellings?  I guess that the degree of control would need to be backed up by the authority to take action (to spend money on the building and to make alterations, where necessary)?

As I say, one for the lawyers - doesn't sound fair to me, but that doesn't mean it's not legal!

[nearlythere]

Interesting... I'm no lawyer, but perhaps it's possible?

Under English fire safety law, the Responsible Person's duties tend to be constrained by the extent they have 'control' over the premises (Article 3 of the RR(FS)O).  If, via contract, the freeholder / managing agent give the tenants a significant degree of 'control' over fire safety via lease agreements or other forms of contract, in my mind they might become RPs, even if the Order does not apply within their dwellings?  I guess that the degree of control would need to be backed up by the authority to take action (to spend money on the building and to make alterations, where necessary)?

As I say, one for the lawyers - doesn't sound fair to me, but that doesn't mean it's not legal!

I doubt if you can contract your statutory responsibilities on to others. I would suggest the only responsibility you can place on tenants is not to interfere with any fire safety measures.

[Fishy]

Interesting... I'm no lawyer, but perhaps it's possible?

Under English fire safety law, the Responsible Person's duties tend to be constrained by the extent they have 'control' over the premises (Article 3 of the RR(FS)O).  If, via contract, the freeholder / managing agent give the tenants a significant degree of 'control' over fire safety via lease agreements or other forms of contract, in my mind they might become RPs, even if the Order does not apply within their dwellings?  I guess that the degree of control would need to be backed up by the authority to take action (to spend money on the building and to make alterations, where necessary)?

As I say, one for the lawyers - doesn't sound fair to me, but that doesn't mean it's not legal!

I doubt if you can contract your statutory responsibilities on to others. I would suggest the only responsibility you can place on tenants is not to interfere with any fire safety measures.

No, you can't - but if statutory responsibilities are invoked because of a civil contract, then that's not the same thing, and amendment of the contract may alter the way the secondary legislation applies?  As the legislation says, if you don't have 'control', you can't normally be an RP, so if the owner somehow ceded all control to others, perhaps in a normally-occupied building they might have no duties under the Order?  In addition, there's nothing to say that leaseholders can't be RPs for the parts of their building subject to the Order, even though it doesn't apply within their dwellings.  This may apply (for example) if they acquire the 'Right to manage': https://www.lease-advice.org/advice-guide/right-manage/

As I said, I'm no lawyer and perhaps I shouldn't be offering opinion on this, but it does sound possible that the situation that The Colonel described could be legally binding, to me.

[Tom Sutton]

In addition, there's nothing to say that leaseholders can't be RPs for the parts of their building subject to the Order, even though it doesn't apply within their dwellings.  This may apply (for example) if they acquire the 'Right to manage': https://www.lease-advice.org/advice-guide/right-manage/

Like you am no lawyer, but but article 3 says " 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)" but  how do you make a tenant meet the second part "carrying on by him of a trade, business or other undertaking" so I would argue you can't make him/her an RP ?

[Animal]

Quick question The Colonel: Is there by any chance a Certificate of Employers Public Liability Insurance in place/displayed in the common parts and if so who's name is on it?

[Fishy]

In addition, there's nothing to say that leaseholders can't be RPs for the parts of their building subject to the Order, even though it doesn't apply within their dwellings.  This may apply (for example) if they acquire the 'Right to manage': https://www.lease-advice.org/advice-guide/right-manage/

Like you am no lawyer, but but article 3 says " 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)" but  how do you make a tenant meet the second part "carrying on by him of a trade, business or other undertaking" so I would argue you can't make him/her an RP ?

You might if they have a contractually-mandated role in the management of the premises (e.g. under 'Right to Manage').  If their leases give them a role along those lines, then it seems possible that they're RPs.

[Tom Sutton]

In the OP there is no mention of bad management in the building by the owner or the management agent, so why would  'Right to manage' be involved.

[Fishy]

In the OP there is no mention of bad management in the building by the owner or the management agent, so why would  'Right to manage' be involved.

No suggestion from that that there was... it was just one example (and by no means the only example) of where lease-holders might also be RPs.

[Tom Sutton]

I still do not agree and would be very pleased to see a concrete example back up by legal opinion.