Every week, somewhere in Tameside, a landlord and a tenant are each assuming the other has dealt with the fire alarm servicing. Both are wrong and both are potentially committing an offence.
The confusion is understandable because the Fire Safety Order does not allocate duties the way a lease does. It allocates them by control. This guide explains how that works in practice.
The statutory definition
Article 3 of the Regulatory Reform (Fire Safety) Order 2005 defines the responsible person as:
- In relation to a workplace: the employer, if the workplace is to any extent under their control.
- In relation to any other premises: the person who has control of the premises, as occupier or otherwise, in connection with carrying on a trade, business or other undertaking, whether for profit or not, or, where the person in control does not have that control in connection with a trade, business or undertaking, the owner.
Read that carefully and one thing becomes obvious: in a building with an employer tenant and a landlord, both definitions can be satisfied at once. That is not an accident.
The provision that catches everybody: Article 5
Article 5(1) and 5(2) place the duties in Articles 8 to 22B on the responsible person. Then Article 5(3) does the heavy lifting:
Any duty imposed by articles 8 to 22B or by regulations made under article 24 on the responsible person in respect of premises shall also be imposed on every person, other than the responsible person, who has, to any extent, control of those premises so far as the requirements relate to matters within his control.
And Article 5(4) extends it further:
Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to the maintenance or repair of any premises, including anything in or on premises or the safety of any premises, that person is to be treated as being a person who has control of the premises to the extent that his obligation so extends.
The practical consequence is this: your repairing obligations under the lease create statutory fire safety duties. If your lease makes you responsible for maintaining the suspended ceiling in your demise, you have control of that element for fire safety purposes and you carry the corresponding duty.
You cannot contract out of it. A lease clause saying "the Tenant shall be responsible for all fire safety compliance" does not remove the landlord's statutory duties over the common parts. It may allocate cost between the parties as a matter of contract but it does not move criminal liability.
The usual split in a multi-let commercial building
In a typical multi-tenanted office, retail parade or industrial estate, duties usually fall out as follows.
The landlord or managing agent is normally the responsible person for:
- Common parts: entrance lobbies, corridors, staircases, lifts, shared toilets, plant rooms, roof spaces
- The building's structure and the fire-resisting construction separating the demises from each other and from the common parts
- Common escape routes and final exits from common areas
- Common fire alarm and detection systems and any common emergency lighting
- Common firefighting equipment
- Common dry or wet risers, sprinklers and smoke control
- External areas, car parks, bin stores and refuse arrangements
- Contractors working in common areas
- Providing tenants with the information they need about the building's fire safety arrangements
Each tenant, as an employer, is normally the responsible person for:
- Fire safety within their demised premises
- Fire risk assessment covering their own occupancy, processes and staff
- Escape routes within the demise up to the point they join the common route
- Their own fire alarm devices, extinguishers and emergency lighting within the demise and interfaces with the base build system
- Housekeeping, ignition sources, storage and electrical safety within the demise
- Staff training, fire drills and nominated persons
- Their own fit-out works and any alteration to fire-resisting construction
- Contractors they engage
Genuinely shared and the source of most disputes:
- Fire alarm testing and maintenance. The landlord typically maintains the system, the tenant typically carries out the weekly test of a call point within their demise and keeps the log. Whether that has been agreed and communicated is another matter.
- Fire doors on the boundary of the demise. They usually protect the common escape route so the landlord has an interest but they are often physically within the tenant's control.
- Fit-out works. Almost every serious compartmentation breach in a multi-let building originates in a tenant fit-out that penetrated a fire-resisting wall or ceiling. The tenant carried out the works, the breach compromises the landlord's compartmentation.
- Evacuation strategy. Individual tenants cannot each design their own strategy for a shared building. This has to be co-ordinated.
The co-operation duty
Article 22 requires that where two or more responsible persons share premises, whether or not on a temporary basis, each must:
- Co-operate with the other so far as is necessary to enable them to comply with their duties
- Take all reasonable steps to co-ordinate the measures they take
- Take all reasonable steps to inform the other responsible persons of the risks to relevant persons arising out of their undertaking
The Building Safety Act 2022 strengthened this considerably with effect from 1 October 2023. A new Article 22(A1) requires every responsible person to take such steps as are reasonably practicable to ascertain whether any other responsible person shares or has duties in respect of, the premises. New Article 22(1)(za) requires each to inform the others of their name and a UK address at which they will accept notices. New Article 22(1)(zb) requires each to inform the others which part of the premises they consider themselves responsible for, and to keep a record of that information.
Separately, a new Article 22A deals with handover: where one person ceases to be a responsible person and another takes over, the outgoing person must pass information to the incoming one. That closes a long-standing gap on sale, reassignment and change of managing agent.
For premises including a residential unit in a higher-risk building, Article 22B additionally requires the responsible person to take reasonably practicable steps to identify any accountable persons and to co-operate with them in the discharge of their Building Safety Act duties.
The message from the legislature is unambiguous: silence between duty holders is no longer an acceptable position.
Residential buildings
For a block of flats, the responsible person is normally the freeholder, the head lessee, a right to manage company, a residents' management company or the managing agent, depending on who has control.
Since the Fire Safety Act 2021 amended Article 6, where a building contains two or more sets of domestic premises the Order applies to the building's structure, external walls including balconies and anything attached to them, any common parts and all doors between the domestic premises and the common parts.
That last point resolves a long-running argument. Flat entrance doors are within the responsible person's remit, even though they are physically part of a leaseholder's demise. Leaseholders are not responsible persons for their own flats but they can obstruct compliance and the responsible person is expected to use best endeavours to gain access.
Where the block sits within a higher-risk building under the Building Safety Act 2022, generally at least 18 metres in height or at least seven storeys with two or more residential units, there is also an accountable person and a principal accountable person. These are separate statutory roles from the responsible person. One organisation may hold both but the duties are not interchangeable.
Who does the fire risk assessment?
This is where a practical answer helps.
In a multi-let commercial building, the correct outcome is normally:
- The landlord commissions an assessment of the common parts and the building as a whole, including the structure, common escape routes, common systems and the building's overall fire strategy.
- Each tenant commissions an assessment of their own demise, addressing their occupancy, processes, staff and management.
- The two are shared so that each duty holder's assessment is informed by the other's findings.
A landlord's common parts assessment that has never seen inside the tenancies cannot properly assess the risk to occupants of those tenancies. A tenant's assessment that ignores the state of the shared staircase is equally incomplete. The Article 22 co-operation duty exists precisely to close that gap.
A single building-wide assessment commissioned jointly is often the cleaner solution, particularly in smaller buildings and is usually cheaper than four separate exercises. It requires agreement and someone to pay for it but it produces a coherent picture.
Common failure points
"The managing agent handles compliance." Appointing an agent does not transfer the statutory duty. It discharges part of it, if the agent is competent and properly instructed. The responsible person remains the responsible person.
"Our lease is fully repairing and insuring so it is the tenant's problem." A FRI lease allocates cost, not criminal liability. Article 5(3) is not disapplied by contract.
"We only occupy one floor." Article 5(3) applies to matters within your control. That is your floor. It does not extend to the roof void but it does extend to the fire door at the top of your stair.
Nobody assessed the vacant unit. Vacant premises still require assessment. PAS 79-1:2020 expressly applies to them and empty units are a well-established arson risk.
Serviced offices and licences to occupy. A licence rather than a lease does not remove control. If you occupy space and direct what happens in it, you have control to that extent.
Construction and fit-out phases. Once contractors are on site, the Construction (Design and Management) Regulations 2015 apply alongside the Fire Safety Order and the fire safety arrangements need to be managed for the works, not the finished building.
Practical steps for landlords and agents
- Identify every responsible person for the building and record which part each is responsible for, as Article 22(A1) and 22(1)(zb) now require
- Issue a written statement to each tenant setting out what the landlord manages and what the tenant must manage
- Provide each tenant with the relevant findings of the common parts assessment
- Require notification and approval of fit-out works that affect fire-resisting construction and require evidence on completion
- Establish who tests the alarm, when and who holds the log
- Establish a co-ordinated evacuation strategy and communicate it
- Keep records. Article 22(1)(zb) requires it for the allocation of responsibility and records are the only thing that helps in an investigation
Practical steps for commercial tenants
- Obtain a copy of the landlord's common parts fire risk assessment or at least its relevant findings
- Commission your own assessment for your demise
- Read your lease and identify every repairing and maintenance obligation because each one creates a statutory duty under Article 5(4)
- Do not alter walls, ceilings, doors or service routes without checking whether they are fire-resisting
- Keep your own records of testing, training and drills
- Report defects in common areas in writing and keep the correspondence
Frequently asked questions
Can there be more than one responsible person for the same building? Yes and in multi-occupied buildings there almost always is. Article 5(3) imposes duties on everyone with control, to the extent of that control.
Does the lease decide who is the responsible person? No. The lease allocates contractual obligations and cost. Statutory duties follow control and Article 5(4) specifically converts repairing obligations into control for fire safety purposes.
Is the leaseholder of a flat a responsible person? Not for their own flat. The interior of a private dwelling is outside the Fire Safety Order. The responsible person for the block is responsible for the structure, external walls, common parts and flat entrance doors.
Who is responsible for a vacant unit in a multi-let building? Usually the landlord, since control reverts to them. Vacant premises still require assessment and still require management, particularly against arson.
What if the landlord will not act on a defect in the common parts? Report it in writing, keep the record, reflect it in your own assessment as a risk outside your control and if it presents a serious risk, contact the local fire and rescue authority. Your own duty is limited to matters within your control but documenting the escalation matters.
