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Laying down the law - January 2018

11 November 2017

The interrelationship between the Fire Safety Order and the Housing Act is complicated and the best of times, so it is not surprising that the role of the domestic tenant within fire safety enforcement is often unclear, warns Warren Spencer.

I HAVE lost count of the number of times that I have been told that the Regulatory Reform (Fire Safety) Order 2005 [FSO] does not apply to domestic premises and applies only to the common areas. Of course, this is broadly correct, but what is often forgotten is that the Order applies to any structure that acts to protect the common areas from fire and smoke, and in particular, any structure which protects the means of escape.

Article 5 of the FSO states that persons other than the responsible person (as defined by Article 3) acquire duties under the Order if they have, to any extent, control of those premises so far as the requirements relate to matters within (their) control. It follows, therefore, that if a flat entrance door leads onto the means of escape and that door is within the control of the tenant, it is the tenant’s responsibility to ensure that the door is suitable to comply with the requirements of FSO. 

A tenant may have a duty to ensure the safety of the premises as a result of a clause in their contract or tenancy. Most tenancy agreements will contain such a clause. Some agreements go further and state that the condition of the property and its contents are deemed to be in good repair thus placing a duty upon the tenant to notify the landlord of any failings in the fire safety management of the premises.

Tenant liability 

So even at a very basic level, a tenant is likely to have some responsibilities under the FSO due to their limited control for fire safety within premises. Enforcement may be considered against the tenant where they have failed to act in accordance with their tenancy agreement or, for example, when asked to replace an existing door with a fire door by an enforcing authority.

But tenants may also be liable for their actions as well as for their omissions. Consider the tenant who removes the self-closing device on a door leading to the fire escape. In the event of fire this could place relevant persons at risk of death or serious injury. I have dealt with numerous cases where detector heads have been covered and fire alarms regularly silenced by tenants, who are usually upset by the number of false alarms! 

Recently, I prosecuted a tenant who was residing permanently in a hotel prohibited for use on the upper floors, but who decided to sublet the empty rooms to local workmen. As the Prohibition Notice had been served upon the tenant as well as the landlord, I argued that he had sufficient control of the premises to acquire responsibilities under article 5 (3) of the FSO. He received a suspended custodial sentence.

In that case there was clearly a risk of death or serious injury. But enforcement action may also be considered where there is no such risk, for example, when an enforcement notice is being considered. Where aspects of the compliance required are the responsibility of the tenant, it would be appropriate to serve a suitably worded enforcement notice upon the tenant, which should obviously be limited to matters within the tenant’s control.

But is the tenant required to work with other responsible persons such as the landlord or managing agent to ensure that fire safety compliance is met? In my opinion he/she is. I refer to the Chief Fire Officers Association Collected Perceived Insights document, which confirms that it is the intention of Article 22 to require responsible persons and duty holders who share premises to take all reasonable steps to coordinate the measures they take to provide general fire precautions in respect of relevant persons. I consider tenants in domestic premises to be potential duty holders in such situations.

Warren Spencer is managing director of Blackhurst Budd Solicitors. You can see more articles from Warren at www.firesafetylaw.co.uk