As a landlord of vacant commercial premises, do I need to produce a Fire Risk Assessment (FRA) for those premises?
1 Under Article 9 of the Regulatory Reform (Fire Safety) Order 2005 (FSO), a "Responsible Person" must carry out a suitable and sufficient FRA. Responsible Person means:
(a) in relation to a workplace, the employer, if the workplace is to any extent under his control;
(b) in relation to any premises not falling within paragraph 1(a) -
(i) the person who has control of the premises (as occupier or otherwise) in connection with the carrying on by him of a trade, business or other undertaking (for profit or not); or
(ii) the owner, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking (1).
2 Where vacant commercial premises are not currently being used as a workplace by a tenant, a landlord is carrying on an undertaking in relation to those premises (its property investment/letting business) and therefore retains control of the premises. On that basis, a landlord falls within limb 1(b) of the above test and is a “Responsible Person” in relation to the vacant premises.
3 Any managing agent appointed by the landlord to manage the premises will also usually be treated as a “person with control” to the extent of its management functions and therefore shares duties with the landlord under Article 5(3) of the FSO. However, the existence of a managing agent does not remove the landlord’s duties.
4 On this basis, the landlord (as the Responsible Person) is the primary duty-holder for the vacant premises for the purposes of the FSO and must carry out and maintain an FRA, including the structural parts (2).
5 There is no exemption in the FSO for vacant commercial premises. What may change when premises are empty is the level and nature of the risk, and therefore the scope of the FRA. The FRA for vacant premises will typically be simpler and focused on matters such as security, arson risk, isolation of services, the condition of fire separation between units, and the potential for fire spread to neighbouring units. The FRA can be a standalone assessment or can form part of an estate wide FRA, provided it expressly covers the vacant premises and its current status.
6 The landlord should provide the FRA it prepares to any incoming tenant and maintain a comprehensive audit trail demonstrating handover and compliance. The landlord should also consider writing to the new tenant in relation to both the landlord and tenant's obligations in respect of fire safety (3).
7 Once a tenant signs the lease, the tenant will then become a Responsible Person for their demised area and will need to carry out and maintain their own FRA for the premises. The landlord will remain responsible for the structure (if the demise to the tenant is internal-only), common parts and any systems it retains in its control.
8 In summary, while premises remain vacant, the landlord is generally the primary Responsible Person and must ensure that there is a suitable and sufficient FRA covering the premises (or ensure that the estate wide FRA is updated so that it clearly does so). There is no general exemption from FRA requirements for empty premises, but the scope of the FRA will reflect the lower level of activity within the premises.
9 Breach of the fire safety duties under the FSO, including the duty to have a suitable and sufficient FRA, is a criminal offence punishable by an unlimited fine, or imprisonment for individuals.
(1) The deliberate capture of more than one person as a Responsible Person is covered in Paragraph 39 Regulatory Reform (Fire Safey) Order 2005 Guidance Note.1: Enforcement.
(2) Fire Safety Order - Supplement to guidance note 1:enforcement clarifies the parts of premises to which the FSO applies, as well as covering “co-operation and co-ordination”. Article 22 The Regulatory Reform (Fire Safety) Order 2005 covers co-operation.
(3) Article 22A The Regulatory Reform (Fire Safety) Order 2005 is particularly important for sellers and outgoing tenants regarding the duty to provide information to the new Responsible Person.
