There
seems to be a lot of uncertainty within the conveyancing community as to when
and in which circumstances Fire and Asbestos Assessments should be sought.
In
this article I attempt to demystify and offer some clarity.
Fire
The
Regulatory Reform (Fire Safety) Order 2005 became law in October 2006 and introduced significant
change to workplace fire safety responsibilities. It also simplified the legislative regime by bringing
all fire safety legislation together into one Order. Essentially it introduced
the need for employers, building owners and occupiers as 'responsible persons'
to carry out, implement and maintain a fire safety risk assessment. That is someone
who has been trained to do so!
A
5-step fire safety risk assessment checklist is available to help 'responsible
persons' carry out and implement a risk assessment in their premises.
All
non-domestic premises including the common or shared parts
of blocks of flats or houses in multiple occupation are covered by the
Order, and may be inspected by their local Fire and Rescue Authority. Under the
Order, Fire and Rescue Authorities have a statutory duty to ensure compliance
and enforce the requirements where necessary.
As
well as the check-list setting out what is required within an adequate risk
assessment, an on-line form is available to help check the extent to which the
assessment will comply with legislation.Fire risk assessment guidance:
What
does this mean for conveyancers?
It
is clear that when acting on the purchase of a leasehold property or a freehold
property where there is shared land or facilities a copy of the fire assessment
should always be sought. If the seller is not able to supply it the seller
should be asked to obtain an assurance from the Freeholder/Management Company
one will be sought and made available within a reasonable period of time.
Health
and Safety legislation has the allowance
of 'reasonable steps' being taken to comply. If there is a plan in place to
assess at some stage in the future this
may help to avoid immediate enforcement action and it might therefore be wise
to ask the seller to provide confirmation from the Freeholder/Management
Company that there is at least a plan in place to undertake the assessment.
If
the client is to acquire an interest in the Freehold/Management company then
there is a need to warn the client of the risk of enforcement for so long as it
takes to supply the assessment.
Asbestos
As
like the above the common areas of domestic buildings e.g. halls, stairwells,
lift shafts, roof spaces give rise to a ‘duty to manage’ asbestos under the Control
of Asbestos Regulations 2012.
The
duty requires you to manage the risk from asbestos by:
■
finding out if there is asbestos in the premises (or assessing if ACMs are
liable to be present and making a presumption that materials contain asbestos, unless
you have strong evidence that they do not), its location and what condition it
is in;
■
making and keeping an up-to-date record of the location and condition of the ACMs
or presumed ACMs in your premises;
■
assessing the risk from the material;
■
preparing a plan that sets out in detail how you are going to manage the risk from
this material;
■
taking the steps needed to put your plan into action;
■
reviewing and monitoring your plan and the arrangements made to put it in place;
and
■
setting up a system for providing information on the location and condition of the
material to anyone who is liable to work on or disturb it.
Essentially
this means the Freeholder s legally bound to identify the presence of suspected
asbestos containing materials.
What
does this mean for conveyancers?
It
is clear that when acting on the purchase of a leasehold property or a freehold
property where there is shared land or facilities a copy of the assessment and
records should be sought. If the seller is not able to supply the assessment the
seller should be asked to obtain an assurance from the Freeholder/Management
Company one will be sought and made available within a reasonable period of
time. The client should be warned that
there is no assessment and to make the client’s surveyor aware of this and to
seek advice.
If
the client is to acquire an interest in the Freehold/Management company then
there is a need to warn the client of the risk of enforcement for so long as it
takes to supply the assessment.
Remember
as a Freeholder the assessment once prepared need to be made available to all
contractors (particularly electricians, gas-fitters and plumbers) carrying out
work on the premises and if the assessment proves to be incorrect the client as a Freeholder could end up in
Court. The client should be advised to
get a competent gas fitter or electrician round (or even asbestos surveyor) and
see if there are suspect materials. If found
the client should either get them analysed or get a full survey carried out.
MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com
