October 15, 2021

Do I need a fire risk assessment (FRA) to sell my flat?

Fire risk assessments and health and safety in blocks of flats are very much on the radar following the tragic events at Grenfell Tower
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Fire risk assessments and health and safety in blocks of flats are very much on the radar following the tragic events at Grenfell Tower. Where does that leave you when trying to sell a flat?

What are Fire Risk Assessments?

A fire risk assessment is a review undertaken of a building to assess its fire risk and to offer recommendations to make the building safer if needed. If there are less than five occupants regularly in the building, then it is not required for the assessment to be written down, even if that would be a wise step to confirm awareness.

Who is responsible for the fire risk assessment?

The question that often arises in leasehold properties is who is responsible, and who pays for, the statutory requirements to carry out such checks and to undertake any work.

The regulations will apply to “Premises” which the order defines to include “…any place…” in particular a workspace, although not to “domestic premises”. This does sound confusing, but essentially means that common parts of a building containing dwellings will be covered but not premises occupied as a private dwelling, such as the flat itself.

The duty is on the responsible person who will generally be the person responsible for managing the common parts. This can include the freeholder and a right to manage company, a Residents Management Company and also managing agents contracted to act on behalf of any of the above.

There is duty on the “responsible person “to “…take such general fire precautions as may reasonably be required in the circumstances of the case to ensure that the premises are safe”. The fire safety risk assessment duty of the “responsible person” is to evaluate the risk to people from fire, taking into account existing fire safety measures and to determine whether additional measures are necessary.

What is the law surrounding fire risk assessments?

The regulatory reform (Fire Safety) Order 2005 is the relevant law.

The regulatory reform (Fire Safety) Order 2005

The legislation states that “Any such assessment must be reviewed by the responsible person regularly so as to keep it up to date…” Presumably the frequency of the risk assessment may depend upon the building concerned. For example, the age and size of the building.

The legislation is enforced by the Local Fire and Rescue Authority, that can carry out inspections and serve enforcement notices on the “responsible person” in the event of non-compliance.

As the duties under the Fire Safety Order (FSO) are extensive, there will often be cost involved in compliance, such as the cost of the inspection itself, replacement of communal doors, fire extinguishers, means of escape etc.… Whether these costs can be passed on to leaseholders by the freeholder or other responsible person depends on the terms of the lease in particular, the service charge provisions.

More modern leases will include an obligation on the freeholder to comply with statutory requirements, with a right to recover the cost of this from leaseholders. Some leases will also have a clause requiring leaseholders to comply with statutory requirements in respect of their own demised premises e.g., if the FSO requires them to install new fire doors to their flats.

Even if the lease does not contain the above clause specifically allowing the freeholder to recover the cost of complying with the FSO, the freeholder may be able to rely on other clauses in the lease, for example, a sweeping up charge.

“Sweeping up clauses” are a widely drafted service charge provision clause allowing recovery of costs for unforeseen items of expenditure. An example would be “expenses incurred for the benefit of the building” or “expenses incurred in the interests of good estate management”.

Such clauses do not automatically allow recovery of all such charges and there has been a lot of case law on the wording they need to contain. However it is likely that such expenditure would fall within a comprehensive “sweeping up clause“.

Who pays for the fire risk assessment and required works?

The cost of work carried out by a freeholder in respect of a statutory obligation still has to be reasonable under the landlord and the tenant Act 1985 and carried out to a satisfactory standard. However, it would be hard to argue that it is unnecessary if required to be done by statute.

Consultation with leaseholders, under section 20 of the Landlord & Tenant Act 1985 is still, of course, required if the works exceeds the cost of £250 for any one leaseholders.

I have a fire risk assessment, what now?

Following this assessment, the document is intended to act as a “living document”, that is, as a tool to help adopt acceptable control measures that can be put into place, that will effectively reduce the severity of the consequences or the likelihood of an accident or incident occurring, to such a level that the overall residual risk is reduced to the lowest possible practicable and acceptable level achievable.

The assessment should be reviewed before any major refurbishment works are carried out, so that the circumstances detailed above can be reconsidered again in the light of the spend proposed and/or available and the possibilities or needs to improve general fire safety measures during the refurbishment. Matters to consider should include the adequacy or even the presence of emergency lighting, fire detection and alarm systems, decorative surfaces and finishes, possible smoke venting, signage and floor surfacing, especially considerations for contrasting nosing’s (leading edges) of stairs etc.

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