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Where there's smoke there's legislation under fire

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Legislation expected to come into force in October this year will require landlords to fit smoke alarms and, in certain cases, carbon monoxide alarms inside their properties. 

The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 will apply both to tenancies granted on or from 1 October 2015 and to existing tenancies on 1 October 2015, which means that landlords of currently let properties will need to ensure that they are compliant with the regulations as of 1 October.

Smoke alarms will need to be fitted on each storey of a property where at least one room on that storey includes a room used partly or wholly as living accommodation. The Regulations state that such rooms will include bathrooms, toilets, halls and landings.

Carbon monoxide alarms will need to be fitted in properties with a solid fuel burning appliance. These include, for example, coal and wood burners, but not properties with oil and gas boilers.

Where a tenancy is granted on or after 1 October, landlords will also be under a duty to make certain that the alarms are in working order at the start of each new tenancy.

To be sure the alarms are fit for purpose, a test must be carried out on the equipment – but the ‘push button’ test procedure we all follow in our own homes might only be testing the wiring circuit and functionality of the siren, and not the actual detection of smoke or carbon monoxide. This potential issue raises a few concerns.

Firstly, what constitutes a test? The new legislation is typically vague, stating only that a landlord must ensure “checks are made … to ensure that each prescribed alarm is in proper working order.” It does not state how the test is to be performed, nor the required level of expertise of the tester.

So, who performs the test? A sensible time to test the alarms, for new tenancies, would seem to be during the inventory check prior to handover to the tenant. Would the clerk undertaking the inventory be comfortable putting their name against a tick in that box? Knowing that pushing the button might only indicate the siren is working, rather than its ability to sense a fire, would make most people apprehensive about declaring it fit for purpose with any degree of certainty. 

For clarity all round, it might seem like a good idea to hire a qualified expert to test the alarm, however this might negate the need for a separate inventory clerk – why not hire or train experts in smoke alarms and pay them to check the fixtures and fittings at the same time? Once the tenant has moved in, the onus is on them to test alarms periodically to ensure they work, but given the confusion over what level of testing is required, should you consider sending an expert to perform the test on a regular basis? 

For existing tenancies, what are landlords expected to do if their tenants do not give them access to the property to fit the alarms? How persistent are landlords required to be? Will it even be a sufficient defence for a landlord to show that an attempt was made to fit the alarms, which was frustrated by an uncooperative tenant?  

All of these questions raise the joint issues of cost and practicality. It would be unreasonable to expect a tenant to check the efficacy of the detection system without any prior knowledge of the equipment, and it could prove prohibitively expensive to hire experts for regular checks on landlords’ properties. Further, the Regulations assume that tenants will be willing to grant access to their landlords for the purposes of fitting/checking the alarms.

It could be said that the new legislation raises more questions than answers and it is evident that more clarity is required. The Association of Residential Letting Agents has written to the Government to raise concerns over the measures and to ask that implementation of the Regulations be delayed to January 2016, without success. 

Some good news for landlords and their agents is that, however the legislation is interpreted, landlords will not be expected to foot the whole bill for the installations. Fire and rescue authorities around England are on standby to provide free alarms to private landlords, and the Government has made grant funding available for the upgrades. However, given the onerous, and in some cases impractical, obligations now being placed on landlords, this is likely to be of small comfort. 

Any landlord tempted to ignore the regulations will do so at their peril. The local housing authority will have the power, if the landlord has not complied with the Regulations following service of a remedial notice, to impose penalty charges of up to £5,000. But this would pale beside potential repercussions of injuries or fatalities due to fire or carbon monoxide poisoning, where the relevant property was found to be non-compliant with the Regulations.
  
For advice on the interpretation of landlord and tenant legislation or individual lease agreements, contact James Attew on 01295 661505 or at jamesattew@brethertons.co.uk 

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