Guidance Note for CLA members

Transcription

1 Guidance Note for CLA members The Smoke and Carbon Monoxide Alarm (England) Regulation 2015 SI 2015 No.1693 Date: 1 st October 2015 CLA Guidance Note Reference: GN45-15 (This guidance note replaces GN40-15 and GN26-15 which should be deleted from your files) Introduction These regulations only apply in England, and take effect on 1 st October There is no grace period for compliance. From 1 st October 2015 these Regulations impose duties on most landlords of residential premises to fit smoke and carbon monoxide alarms, both for existing and new tenancies. In addition with new tenancies these alarms must be checked on the day the tenancy starts to ensure that they are in working order. Local authorities will have a duty to enforce the regulations if they believe there to be a breach. It should be noted that some County Fire Services may provide these alarms free, and some will also fit them as well. It is worth checking on their websites to ascertain whether these are on offer in your area and whether you meet the criteria. Background Over the last decade, the size of the Private Rented Sector (PRS) has increased steadily compared to social housing. There is considerable pressure for further regulation of the Private Rented Sector. There remains considerable pressure to maintain high quality accommodation where it is offered, and to increase the standard across the whole of the rented sector. This draft regulation will put an additional burden residential landlords, but is aimed at reducing deaths where fire and carbon monoxide alarms could make these preventable. Regulation The new duty is to be introduced by Statutory Instrument (SI) The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 SI 2015 No which accords with s150(9) of the Energy Act 2013 and s250(6)(f) of the Housing Act There is also guidance published by the Department for Communities and Local Government (DCLG) Page 1 of 6

2 Duties on Relevant Landlords A relevant landlord must ensure from 1 st October 2015 where premises are let under a relevant tenancy that : a. A smoke alarm is located on each storey of the premises on which there is a room used as living accommodation. b. A carbon monoxide alarm is located in any room used as living accommodation and equipped with a solid fuel burning combustion appliance. c. Checks are made by or on behalf of the landlord to ensure that each alarm is in proper working order on the day a relevant new tenancy starts. The definition of room and living accommodation also includes bathrooms, lavatories, halls and landings. The requirement to check There is no requirement to check the operation of alarms when: a. A tenancy has been granted prior to 1 st October b. In a periodic shorthold tenancy arising under section 5 of the Housing Act 1988(a) on the coming to an end of a fixed term shorthold tenancy. c. In a tenancy which comes into being on the coming to an end of an earlier tenancy where both the premises and the landlord and tenant are the same as those let under the earlier tenancy. Tenancies covered by the requirement a. One which grants one or more persons the right to occupy all or part of the premises as their only or main residence. b. One which provides for payment of rent (whether or not a market rent). c. One which is not excluded (below). Excluded Tenancies a. Long Leases and those of 7 years or more, taking into account break clauses. b. Student Halls of Residence c. Hostels and Refuges d. Care Homes e. Hospitals and Hospices f. Other Accommodation relating to Healthcare g. Shared Accommodation with Landlord or the Landlord s family Page 2 of 6

3 Accommodation Excluded from this regulation a. Registered Social Landlord Accommodation b. Houses in Multiple Occupation c. Licensed Housing under s99 Housing Act 2004 d. Vehicles and Vessels However different requirements may cover those types of accommodation Relevant Landlords a. The immediate landlord in respect of a tenancy covered by the requirement. b. The person entitled to the reversion expectant on that tenancy (where the tenancy is not license). c. Where the premises are occupied under a license; the licensor (except where the licensor occupies the property under a specified tenancy, the person entitled to the reversion on that tenancy). Enforcement Where a landlord is in breach he will be sent a remedial notice from the enforcing authority. The local authority can then issue a penalty charge which should not exceed 5,000. The landlord must comply with that notice within the stated timeframe. Where the enforcing authority has reason to believe that the notice has not been complied with, they may within 28 days give a minimum of 48 hours notice of intended remedial action. A landlord can make representation to the local authority that the decision to issue a penalty charge should be reviewed. Landlords Right of Appeal A landlord may appeal to the First-tier Tribunal that the decision to issue either notice or penalty charge was wrong in law, based on an error in fact or unreasonable. The Tribunal may quash, confirm or vary the penalty charge but may not increase it. Additional Definitions Solid fuel burning combustion appliance This covers any appliance that burns solid fuel, including open fires. Only non-functioning purely decorative fireplaces would not constitute a solid fuel burning combustion appliance.. Alarm standards - There is no definition as to what standard the alarms should meet but a relevant British standard would seem appropriate. Page 3 of 6

4 Break clauses in Long Leases - Care should be taken over the exemption for Long Leases and those of 7 years or more. If there are break clauses actionable either by the tenant or the landlord and if these can be exercised within the first seven years then the property would fall into the regulations. For example a 10 year tenancy with a break clause at 5 years would not be exempt from these regulations. It should be noted that long running tenancies, many of which are in reality period tenancies, are not exempt from this regulation Advice to CLA members Dwellings let as part of an agricultural tenancy The way the draft regulation is written it appears to be aimed to cover as many different types of tenancy agreement that it can so it could apply to all agricultural tenancies which comprise living accommodation. Agricultural Holdings Act (AHA) Tenancies operate from year to year and have the ability for a tenant to serve a notice to terminate the tenancy in any year. Therefore AHA tenancies would not meet the criteria of a long lease and therefore alarms would need to be fitted. In addition if there was succession or assignment the landlord would have to check the alarms at that time. Under the 2015 Model Clauses the landlord is responsible for the repair and replacement of these alarms in any event Farm Business Tenancies (FBT), if they run for more than 7 years and have no break clauses actionable by either the landlord or the tenant within the first 7 years then they will be exempt. However at the end of the initial term the FBT would then become periodic and the alarms will then become a requirement. There is no obligation under this regulation for landlords to check alarms where AHA or FBTs were created before 1 st October when these tenancies become periodic or a new tenancy is granted to the same tenant and the property is the same, or substantially the same. If succession or assignment takes place the alarms would need to be checked as the tenant would be different. Where an agricultural tenant who s tenancy started before 1 st Oct 2015 sublets a house or cottage after 1 st October 2015 then agricultural tenant becomes responsible for checking the alarms in that property at the start of the tenancy, although the landlord remains responsible for ensuring that they have been installed. Holiday Cottages Holiday Cottages are exempt from this regulation as they are not usually let as a person s only or main residence. Care needs to be taken where these are let to individuals for longer periods (e.g. winter lets) when they may become a person s only or main residence. Holiday cottages still require risk assessment and smoke alarms to be fitted under the Regulatory Reform (Fire Safety) Order Page 4 of 6

5 Service Accommodation It would appear from the wording of the regulation that service accommodation provided free of charge to staff might be exempt as rent is not paid. The CLA has sought clarification on this issue but DCLG have not provided anything further. The CLA does however recommended however that Smoke and Carbon Monoxide Alarms are fitted to these premises. However these premises will still be covered by the Housing Health and Safety Rating System (HHSRS). Housing Health and Safety Rating System (HHSRS) The HHSRS contains the following recommendation: Properly working alarms, connected to smoke or heat detectors probably do more to save lives in the event of a fire. They provide early warning to the occupants, allowing them to escape before they are overcome by fumes or burned. There should be sufficient properly designed and appropriately sited smoke and/or heat detectors with alarms in every dwelling. These should be properly maintained and regularly tested. (Alarms are available for those with hearing impairment.) So in any event it would seem that smoke detection would already feature in the HHSRS hazard scoring should you have an inspection. Record keeping Whilst there is no requirement to keep any records, it is always wise for a landlord to do so. These records might extend to the location of these alarms (if they are stick on or screw in they can easily be removed), if they are battery operated and where new batteries have been fitted when this was done and the time they were checked on the first day of the first day of the new tenancy. This record could be done as part of the usual handover paperwork to the new tenant. Again it would be wise for the tenant also to sign the paperwork to signal their agreement. If the tenant will not give access to the property to install these alarms the landlord should write to the tenant explaining the legal requirement and that it is for the tenants own safety. If access is still denied then this documentary evidence will go some way to protect the landlord from further action. Existing Alarms Where these alarms have already been fitted by or on behalf of a tenant, it would be prudent for the landlord to note that these are functioning and properly located, and get an undertaking from the tenant not to remove them Page 5 of 6

6 For further information please contact: Andrew Shirley MRICS Chief Surveyor CLA, 16 Belgrave Square London SW1X 8PQ Tel: Fax: Important Information. No responsibility for loss occasioned to any person acting or refraining from action in reliance on or as a result of the material included in or omitted from this publication can be or is accepted by the author(s), the CLA or its officers or trustees or employees or any other persons. Country Land & Business Association All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in any retrieval system of any nature without prior written permission of the copyright holder except as expressly permitted by law. Page 6 of 6