Tenant Obligations – Safety first

In the last instalment of our real estate blog, we looked at statutory compliance clauses in commercial leases. A breach of statute can also be a breach of the lease, which gives the Landlord a right to terminate.

The lease obligation is usually fairly widely drafted and could catch any statutes, regulations or bye-laws. Whilst there is a common misconception that Health and Safety legislation tries to micro-manage every aspect of the workplace, there are still several safety laws which can impact commercial tenants, including:

HEALTH & SAFETY
The Health & Safety at Work etc Act 1974 imposes a duty on all employers, but also extends obligations to third parties who are not their employees, or who use non-domestic premises in connection with their work.

The obligations
The basic obligation is to ensure the health, safety and welfare at work of all employees (and to ensure that any non-employees are not exposed to any risks to health or safety).

Practical implications
The obligation is deliberately wide-ranging and will include obligations to maintain a safe working environment and safe means of access to the workplace. The precise requirements will vary considerably depending on the type of business carried on. However, as a minimum, the carrying out of risk assessments and the maintenance of a Health & Safety file for the premises would be expected.

Further guidance
Health and Safety Executive: http://www.hse.gov.uk/

WATER SUPPLY
Any water storage system, particularly one where the water temperature in any part of the system is between 20 and 45⁰C, can give rise to a risk of legionnaire’s disease. Common water systems at risk include cooling towers, condensers, hot and cold water systems, humidifiers etc.

The obligations
There are no specific regulations regarding legionella, but the obligation to minimise the risk is covered by the general health and safety legislation

Practical implications
Incoming tenants or occupiers will, on occasion, request a Legionella report confirming that the water systems at the property have been inspected and are safe for use. This will be particularly important for any tenants who provide drinking water to customers such as cafes, hotels and restaurants.

Further guidance

Health and Safety Executive: http://www.hse.gov.uk/legionnaires

EQUALITY

The basic principle of the anti-discrimination legislation is to ensure that a disabled person is not at a substantial disadvantage compared to persons who are not disabled, and to take reasonable steps to avoid such disadvantage.

The obligations

In relation to physical features (i.e. property) there is an obligation to make reasonable adjustments to avoid disadvantage .

Practical implications

Tenants may have to make certain alterations to the premises to improve accessibility – this could include making alterations to the exit or access to a property, or the provision of auxiliary aids (e.g. wheelchair ramps, handrails, ensuring the provision of accessible toilet facilities). The requirement may apply either in the case of a specific employee of the tenant or, more generally, if the premises are regularly accessed by members of the public (e.g. retail premises).

Further guidance

ACAS: http://www.acas.org.uk/index.aspx?articleid=3017

ENVIRONMENT

Although environmental legislation is often thought of in terms of making good any contamination which has transmitted to other properties, the rules also include provision to try and prevent contamination in the first place.

The obligations

In relation to any household, commercial or industrial waste, no person may deposit the waste in or on any land without a permit. Additionally, there is a duty of care to prevent the escape of any waste.

Practical implications

In general, collection by the local authority (who are regulated to deal with waste for landfill) will be sufficient for complying with the legislation. However, tenants should be aware that any hazardous or special waste (such as clinical waste, soil or appliances containing refrigerant gasses) may be subject to further restriction. In the event that the local authority issues any remediation notices or fixed penalties, the Tenant will be liable for complying with the terms of the notice.

Further guidance

Scottish Environmental Protection Agency: https://www.sepa.org.uk/regulations/waste/

In the final instalment of our articles on statutory compliance, we’ll consider how planning and building regulations affect tenants and what landlords need to do to assist.

If you are concerned whether or not you are complying with the terms of your lease, please don’t hesitate to contact any of the Gilson Gray real estate team:-

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For More Information Contact:
Murray Stewart
Mobile: 07920 866 998
Direct Dial: 0131 516 5370
Email: mstewart@gilsongray.co.uk

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Donna Kelly-Gilmour
Mobile: 07956 177 541
Direct Dial: 0141 530 2043
Email: dkellygilmour@gilsongray.co.uk

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John Fulton
Mobile: 07487 801 616
Direct Dial: 0141 433 7759
Email: jfulton@gilsongray.co.uk 

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Gregor Duthie
Mobile: 07841 022651
Direct Dial: 0141 433 7753
Email: gduthie@gilsongray.co.uk 

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Iain Witheyman
Direct Dial: 0131 516 5358
Email: iwitheyman@gilsongray.co.uk 

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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.