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Annual Essential Safety Measures Report Change Is Upon Us

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Until recently an Annual Essential Safety Measures Report was only required for multiple occupancy buildings constructed on or after 1 June 1994. However, since the amendment to the Building Regulations 2006 (“the Regulations”) these rules will now apply to all owners of multiple occupancy buildings (“owners”) including those built pre 1 June 1994.

Essential Safety Measures (“ESM’s”)

ESM’s are defined to mean any measure (including an item of equipment, form of construction or safety strategy) required for the safety of persons using a building or place of public entertainment.

ESM’s include traditional building fire services such as sprinklers, fire fighting equipment and smoke detectors. In addition, ESM’s also include passive fire safety methods such as fire doors, fire rating of structures and means of exit from the building.

Importantly, air-conditioning and elevators are also considered ESM’s under the Regulations and therefore appropriate maintenance regimes will need to be put into effect to maintain these items.

Owners are responsible for ensuring that any safety equipment, safety fittings or safety measures are maintained and fulfilling their intended purpose.

Annual Essential Safety Measures Report (“AESMR”)

Owners must compile an AESMR in compliance with Regulation 1215 (below) and update it annually prior to 13 June. This process can be managed internally or an owner can engage a registered building surveyor to identify the ESM requirements and prepare the AESMR.

Regulation 1215 provides that an AESMR must be in a form approved by the Building Commission and include statements:

  1. That the owner has taken all reasonable steps to ensure that each ESM is operating and has been maintained in a state that enables it to fulfill its purpose
  2. There has been no penetrations to required fire-resisting construction, smoke curtains and the like in the building and
  3. There has been no change to the materials or assemblies that must comply with particular fire hazard properties

Changes affecting owners of pre-1994 constructions

Owners must be aware that in most circumstances they are unable to transfer their ESM obligations onto the tenant through provisions under a lease. It is important for a landlord to address the following issued under a lease:

  1. Right of the landlord to enter and inspect the premises to ensure that the requirements of ESM’s are being met by the occupier
  2. Include provisions ensuring the tenant uses the property in a manner consistent with compliance with ESM’s
  3. Insofar as it is the tenant’s responsibility, allow rectification of ESM’s that do not comply with the Regulations at the tenant’s expense and where it is the landlord’s responsibility, allow rectification by the landlord

Many leases do not adequately address whether the landlord or tenant is responsible for certain building services or facilities. This inevitably leads to disputes between landlord and tenant, and such disputes often relate to the maintenance and repair of an ESM. It is important that landlords seek specialist legal advice where a dispute arises over ESM’s.

Landlords should also be aware that Section 251 of the Building Act 1993 provides that if an owner fails to carry out work that they are obliged to do, the occupier may carry out the work and then recover the expenses from the owner. In these circumstances, the tenant may also deduct the expenses from any rent payable. The application of Section 251 makes it important for landlords and tenants to seek appropriate advice in relation to their respective liabilities insofar as they relate to ESM’s.

Action Required

Owners must immediately start reviewing their ESM’s to ensure that they are compliant prior to 13 June 2009.

Authors: Daimon Goto & Damien Schulze