Common Area Management
Whilst the freeholder owns the exterior (and interior) common areas of a block of flats, everyone involved the management of these areas on their behalf are required to be aware of the ongoing requirements of keeping these areas well maintained and safe.
The following broad guidelines have been sourced from the Federation of Private Residents’ Associations (FPRA). Not all will apply, (depending on the type of the building) and it is the terms of the lease that should be the definitive guide.
Asbestos Review Report
Buildings Insurance (a condition of purchasing a flat)
Water Risk Assessment
Every 6 Months
Jet Wash Paths
Every 3 Years
Health & Safety – Major Review
Buildings Insurance – Alternative Quotations
Every 5 Years
Communal Electrics – Full Inspection
Every 7 Years
Plant and Equipment
Thorough examination of passenger lifts (and perhaps boilers) are regulatory requirements but (depending on the property) may extend to include equipment such as all lifts – passenger, goods and disabled – steam boilers, pressure vessels, refuse hoists, gantry access equipment and window cleaning equipment.
There is also the issue of compliance with wide-ranging health and safety legislation for these areas which are not just to ensure the safety of those who live on the premises but those who visit or who are employed to carry out various works. This is because both the Health and Safety Executive (HSE) which enforces most health and safety matters and the Courts view the common areas of blocks of flats )owned by the freeholders) as workplaces, just as they do commercial properties.
REPORTING OF INJURIES, DISEASES AND DANGEROUS OCCURRENCES REGULATIONS 2013
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (known as RIDDOR), is the law that requires employers, and other people in control of work premises, to report and keep records of work-related accidents which cause death, work-related accidents which cause certain serious injuries (reportable injuries), diagnosed cases of certain industrial diseases and certain ‘dangerous occurrences’ (incidents with the potential to cause harm).
CONTROL OF ASBESTOS REGULATIONS 2012
The Control of Asbestos Regulations 2012 came into force on 6 April 2012, and updated previous asbestos regulations because the European Commission believed that the UK had not fully implemented the EU Directive on exposure to asbestos (Directive 2009/148/EC).
So whilst landlords and agents must be aware of any asbestos containing materials within the common areas of blocks of flats, what remains the same is that if there is existing asbestos containing materials in good condition and not likely to be disturbed or damaged, they can be left in place. The ‘responsible person’ for asbestos management will ensure that regular monitoring is carried out and a register kept that contains where the asbestos is located, and it’s type and condition. The ‘responsible person’ will also ensure that regular risk assessments are carried out and anyone working on the premises will be protected.
Asbestos removal is required to be carried out by a licensed contractor as is all work with sprayed asbestos coatings and lagging and most work with asbestos insulation and asbestos insulating board (AIB).
BUILDING REGULATIONS ACT 2010
The Buildings Regulations Act 2010 governs fire safety design in new blocks of flats. It does not introduce new standards or regulations, but builds on existing good practice and guidance currently in place.
HEALTH & SAFETY OFFENCES ACT 2008
The Health & Safety Offences Act 2008 amends the maximum penalties that can be made against defendants under the Health and Safety at Work, etc. Act 1974 (HASAWA) and subservient health and safety regulations. The Act increases fines for most existing health and safety offences from £5,000 to £20,000 in the Magistrate Court (the amount remains unlimited in the Crown Court). The Act also creates the threat of imprisonment for employees who may have contributed to a health and safety offence by their granting their consent, by connivance with others or neglect.
REGULATORY REFORM (FIRE SAFETY) ORDER (RRO) 2005
The Regulatory Reform (Fire Safety) Order (RRO) 2005 requires a ‘responsible person’ to carry out, implement and maintain a fire safety risk assessment for the common/shared areas of blocks of flats. This is to ensure the safety of all residents, visitors or employees to the property. Fire Officers have the authority to enter and carry out inspections both to the exterior and internally for which the Fire Authorities have a statutory duty to ensure compliance.
In addition to ensuring the safety of people, areas covered by a fire risk assessment will be to check the following:
- Ignition sources and flammable materials;
- Fire-fighting equipment, i.e. extinguishers
- Fire doors;
- Smoke detection;
- Escape routes and evacuation procedures.
WORKING AT HEIGHTS REGULATIONS 2005
Work at heights is governed by the Work at Heights Regulations 2005. Work under this description can be at any height that a person could be injured from falling from it so it is very wide ranging so the principle is that any work at height must be avoided if its practical to do the work in another way. It it can’t be avoided than a risk assessment must be carried out and the work planned accordingly. Changing light bulbs, window cleaning, smoke detector checking, gutter cleaning, all require the use of a ladder of varying sizes so if the landlord supplies one then it needs to be checked regularly and a notice stuck on it detailing safety precautions for its use.
A brief guide can be found here.
MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS 1999
Under the Management of Health and Safety at Work Regulations 1999, all blocks of flats are required to have a health and safety risk assessment carried out (and reviewed annually) in respect of the common areas. These are areas not individually owned by leaseholders and cover the structure of the building, the land the building stands on, gardens, paths, garages and any outbuildings. They will also cover areas inside the building such as plant rooms, lift motor rooms, and meter cupboards. However, as there is no legal definition of common areas it will be the lease that is the definitive document.
A large part of the service charge budget may be required to adhere to the legislation but failure to comply could come at a far greater cost should an accident or injury occur.
ELECTRICITY AT WORK REGULATIONS 1989
All parties must ensure that 5 year fixed wiring tests for the common areas and PAT testing of portable electrical supplied by the freeholder or managing agent is carried out according to the Electricity at Work Regulations 1989. Thorough inspections and maintenance of lifts must also be carried out under the Lifting Operation and Lifting Equipment Regulations 1998.
CONTROL OF SUBSTANCES HAZARDOUS TO HEALTH REGULATIONS 1989
Freeholders and managers are under a legal obligation to ensure that residents are not at risk to exposure of the legionella bacteria in the water systems. This is not new as it stems from the Control of Substances Hazardous to Health Regulations 1989 with s3(2) of the Health and Safety at Work Act 1974 (general duties of employers and self-employed to persons other than their employees) making provisions for the legislation to apply to landlords of both business and domestic premises.
DEFECTIVE PREMISES ACT 1972
A duty of care is placed on both freeholders and management under s4 of the Defective Premises Act 1972 in relation to any person who might be affected by a defect, ‘to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect’.
This is civil redress and a defect is relevant if the landlord knew about it or should have known about it – the fact that a defect has not been reported or there has been a failure to inspect (e.g. rotten floorboards or joists) does not remove liability. It is for this reason that it is important that landlords (or their agents) carry out regular checks on the property.