It was announced in November 2021 that all new buildings in England will be required to install electric vehicle charge points from 2022. Buildings undergoing renovations that leave them with more than 10 parking spaces will also be subject to the new measures. The announcement comes as the latest stage in the government’s bid to reach net zero by 2050.
Of course, these aren’t the only regulations in place relating to commercial property and their requirements for use. Both landlords and tenants have a duty to ensure business premises are well maintained, safe and healthy places for people to work. Exactly who is responsible for what comes down to the law and the terms set out in the lease.
Health and Safety
The responsibility for the health and safety of a building lies largely with the tenant. The Health and Safety at Work etc. Act 1974 sets out the requirements, which include that the tenant must carry out a health and safety risk assessment and take action to remove any hazards, provide a reasonable temperature, ensure enough space, adequate ventilation and lighting, and provide a suitable number and standard of toilets and washing facilities, drinking water and safe equipment.
Should the property contain any communal area, the health and safety of these will usually fall to the landlord. This should be detailed in the lease, and the tenant is required to take ‘reasonable steps’ to ensure that the landlord adheres to them.
Gas, fire and electrical safety
In the UK, it is a legal requirement that landlords and owners of commercial properties have their gas appliances inspected every 12 months. Tenants must maintain equipment according to the manufacturer’s instructions, which could mean an annual inspection by a registered gas safety engineer.
In relation to fire safety, various duties fall to the “responsible person” – most often the tenant, except in premises that are not ‘workplaces’.
For electrics, the responsibility sits with the landlord to ensure that safety standards are maintained. It is recommended that testing is carried out every five years or on a change of tenancy.
Under the Control of Asbestos Regulations 2012, there is a duty to take ‘reasonable steps’ to find out if there are asbestos containing materials in the building and take suitable action regarding any suspect fibres that are found. Responsibility for this, according to the Health and Safety Executive, falls to the ‘dutyholder’ – which is the tenant in the majority of cases.
Maintenance and repair
Once a tenant takes occupancy, they will usually assume a significant degree of responsibility for the maintenance, upkeep and repair of the property. The lease should set this out in detail and where the tenant is only leasing part of a larger building, the landlord should retain the responsibility for maintaining the building itself and / or its communal areas.
As a step to protect themselves against future dilapidations claims, it is advisable for tenants to instruct a surveyor to assess the condition of the property prior to moving in, including a photographic schedule of condition which is then attached to the lease.
Landlords will understandably want to protect their own interests in relation to the upkeep of a property. They may wish to include the right to undertake an interim Schedule of Dilapidations as well as a terminal Schedule of Dilapidations in the lease, which would allow them to ensure the property is being maintained at any given interval.
Minimum Energy Efficiency Standards (MEES)
Regulations came into force on 1 April 2018 which require eligible rented properties to have a minimum energy performance rating of E on an Energy Performance Certificate (EPC). This applies to both new leases and renewals (unless an exemption applies and the landlord has registered that exemption). From 1 April 2023 it will be unlawful to continue to let eligible commercial property which does not meet the minimum energy efficiency standards. There are some exceptions – for example, the MEES Regulations do not extend to leases of less than 6 months or leases of 99 years or more. There is also some debate as to whether the regulations apply to Listed Buildings, particularly where any energy improvement works would fundamentally change the character or appearance of the property.
Any breach of legal requirements can leave a landlord or tenant open to investigation and potential fines from the relevant bodies involved.
It is therefore essential that both landlords and tenants understand their respective responsibilities. Our commercial property solicitors can help to clarify the contents of a lease, or can advise on a lease’s contents, including negotiating the terms before signing.
For more information or advice in relation any aspect of a commercial property lease, contact James O’Donnell at our head office on 01457 761 320 or email email@example.com.