There was an important law change yesterday regarding fire safety, most importantly the regulation of doors, balconies, and cladding. In our recent update, we discuss the obligations on landlords and how to deal with enforcement action that may be taken against them.
The thorny issue of fire safety and front doors to flats has come to life again with the introduction of the Fire Safety Act 2021, which became law on 16 May 2022.
The Act is remarkably brief and makes a simple but potentially crucial amendment to the Regulatory Reform (Fire Safety) Order 2005 (“the Fire Safety Order”).
There has long been a problem for landlords of blocks who want to change the flats’ front entrance doors, to update them to a better fire safety standard. That is easily done for tenanted flats. However, where there are long leases, created under say the Right to Buy, the front door was often demised to the leaseholder as part of the lease.
The Fire Safety Order did not apply to Domestic Premises. That included residential flats. So landlords and fire authorities could not use it to force the doors to be changed (although they often tried).
The detail of Article 6 of the Fire Safety Order has now been changed, by the addition of a few words, to read:
This Order does not apply in relation to domestic premises, except to the extent mentioned in paragraph 1A
Paragraph 1A reads:
Where a building contains two or more sets of domestic premises, the things to which this order applies include:
- The building’s structure and external walls and any common parts
- All doors between the domestic premises and common parts
The reference to external walls includes:
- Doors or windows in those walls, and
- Anything attached to the exterior of those walls (including balconies)
So, Front Entrance Doors are now covered by the Fire Safety Order.
But who is responsible for them and complying with the requirements of the Order? The “responsible person” is defined in Article 3 of the Order. It includes:
- “the owner, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking”.
The leaseholder generally will not be running a business, so the suggestion will be that the freeholder is an owner and responsible person.
As such, the relevant authority may look to take enforcement action against the freeholder to get the doors replaced.
However, the doors do not belong to the freeholder if demised to the leaseholder. So, the freeholder cannot change the doors even if they want to.
If a landlord is served with an enforcement notice in those circumstances, they should appeal to the court under Article 35. They have 21 days from service in which to do so. Failure to do so could lead to prosecution and fines.
In our view, what the authority should be doing is serving notices on the leaseholder, who is also an owner and therefore a responsible person.
Additional pressure can then be applied by the freeholder to ensure compliance with the notice. Most leases contain a covenant (promise) by the leaseholder to “comply with relevant statutes” (or words to that effect). The Fire Safety Order is a relevant statute and failure to comply with a notice would potentially be a breach of lease and could lead the freeholder to take enforcement action. This could include an injunction or seeking forfeiture (although almost certainly not both).
On service of a notice by the fire authority the leaseholder may become willing to allow the freeholder to change the door.
Eagle-eyed readers will have noticed that balconies are now subject to the Fire Safety Order. Again, the same issue arises. Balconies have often been demised to the leaseholder.
The main walls and cladding are part of the structure and so are subject to the Fire Safety Order now. Those will almost certainly not have been demised and the only owner and person responsible is likely to be the freeholder.
The Order imposes several obligations on the responsible person including, under Article 9, the need to make a suitable and sufficient assessment of risk. The assessment will now have to include external walls and cladding.
That does not depend on the height of the building, it applies to all blocks with two or more flats.
The London Fire Brigade has already said it intends to use its new powers and called on building owners to take urgent action.
This is a complicated area of the law. Leases should be read carefully as the ownership and responsibility for doors, windows and balconies will often vary between blocks.
Roythornes’ specialist team are happy to advise further.