Hi all, back again; I've got a bit of an issue regarding landlord/owner responsibilities versus our company (us being the tenant) responsibilities in respect of things like asbestos, fencing, LED lighting and skylights, and our company car park. In a nutshell, I'm trying to find out whose responsibility it is to maintain, repair etc and contribute financially towards these. In the case of the asbestos, as a business we have done a RA and put together a management plan and we are carrying this out. However, there does need to be some encapsulation work done that is of fairly significant cost. The problem is, after having reviewed L143, specific Reg 4 it states the duty holder has an "obligation of any extent in relation to maintenance of repair" where this is "by virtue of a contract or tenancy". It also states "where this is no such contract or tenancy, every person who has to an extent, control of that non-domestic premises" also has a responsibility. Well, the problem is, we are tenants, but there is no actual tenancy agreement or lease contract. Should it be seen - even with no contract in place - that there is technically more than one DH, therefore a relative contribution should be made by each person(s)? Or is that all over-ridden by paragraph 95 where there is no agreement, the duty is placed on whoever has ultimate control (i.e. owner, which in our case is also the LL)?

Our outer fencing, lots of holes/gaps, school nearby, we are a manufacturing company and needless to say have numerous hazards on site so is a large risk, needs significant repairs to it; under the HSWA we as the Employers have a duty to protect our employees, but people in control of the premises have a duty towards others (Welfare Regs). Reg 5 states that the “workplace and equipment…be maintained in an efficient state” and fencing is deemed as equipment and requires a system of maintenance, so surely the job of the landlord/owner?

Car park; lots of pot holes, causing lots of damage and needs a lot stronger substrate; Welfare regs, Reg 12 states that “every…surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used” and “[of a] surface of the traffic route is suitable for the purpose for which it is used” and that “damaged surfaces that may cause a person to trip or fall should be made good”. Again, if the Welfare regs states people in control of the premises have a duty, does that mean they are financially responsible for resolving it?

 Skylights, dirty, damaged and need replacing; Welfare regs mentions safe use and access, ability to clean safely etc but doesn’t make any mention about if they need replacing; where do we stand here?

 Lastly, we are looking at putting in LED lights; significant cost to run but also costly to implement LED scheme; is there any precedent we can refer to that would suggest the owner/LL should contribute towards this?

 As a business, we are willing to make contributions towards this as is our insurer, but the owner/LL appears reluctant, so just want to understand if ultimately they should be contributing financially and if so, if there is anything we can use to convince them of their responsibilities (that would be helpful and appreciated). Apologies for the long post.

Short answer - what does your rental/tenancy agreement say?

If you are listed pay up, if not the landlord needs to step up. 

Originally Posted by: Dave5705

Originally Posted by: Svick1984

Well, the problem is, we are tenants, but there is no actual tenancy agreement or lease contract.

Hi Svick1984,

How on earth do you not have any agreement or contract? Under what circumstances has that come to pass? 

I can't answer that I'm afraid because I simply don't know; the business has operated this for the last 20 or so years, and I've only been here about 7 months. I believe we've tried in recent history to try and agree to a contract with the LL/owner, but they haven't agreed to it.

So, where do we stand? No contract means entirely LL/owner responsibility?

The landlord is responsible for all areas outside of your demise. There will be some form of a contractual agreement. Liaise with the facility manager or the insurance company.

You (tenant) are not allowed to carry out structural repairs to areas outside your demise as the landlord could very well turn around saying they never authorised such works.

All the aforementioned areas of disrepair will be under the remit of your landlord so I would consider holding any further remedial works until the issue of contract is resolved as you could potentially spend a lot of time and money only to be informed to put things back to exactly the way they were.

Hope this helps.

Originally Posted by: Svick1984

Just verbal from the looks of things; whether solicitors have been involved at this point (and whether our MD wants to involve them) I'm not sure. I think the concern is making the relationship bad and the consequences (i.e. rent increasing significantly).

As a first step I'd definitely get the advice of a solicitor (or a building surveyor) you could certainly do this discreetly without approaching your landlord in the early stages at least. Just the idea of having no agreement in place is a little alarming!

Originally Posted by: Hsquared14

Read the terms of your lease and your insurance policies very carefully.  I think you will find the answers in these two documents.

As I said, we don't have a lease contract. The insurance company is willing to assist with costs, but we are trying to get the LL/owner on-board.

Does the landlord count as a dutyholder? Legally yes. Particularly and clearly for asbestos DTM but also in case law.

Are they the sole dutyholder? No. Duty across all hazards applies to your organisation too.  Your work activity creates risk for your employees and others.

What extent does each parties liability run to? That's exactly why no contract is a daft situation to be in. These things exist from time nearly immemorial for a reason. Liability will need to be agreed via negotation and if that fails, in a Court. As an actual employer actively using the premises as a workplace, the pressure on your company is greatest for a resolution to the hazards which is not an enviable starting position.

DTM, yes. Duty to Manage.

If you were to knock down buildings and redesign the whole site would the owner have a thing or two to say? Probably.  In those circumstances they then clearly have some extent of control and would come under the definition of dutyholder alongside yourselves. Relative contribution of that duty (and thus relative liability for costs) is likely to be directly proportional to the extent of that control.

Originally Posted by: Svick1984

 So, yes we can't determine the extent of the liability, but there is some liability there, correct? 

I'm not sure I'd even go that far on the information at the moment, I'm not a lawyer but without anything in writing and the arrangement persisting over a long period of time I wonder if the legal position might come down to what the arrangement more closely resembles. Under normal circumstances if you did have a commercial lease it would be relatively normal for it to be 'fully repairing' i.e. anything within your demise is your responsibility to maintain. If on the other hand you had a rental agreement you might expect the landlord to take more responsibility.

I'm guessing (and it is no more than a guess) that if you found yourself in court because something had gone wrong, say for instance someone has been exposed to asbestos, a 50/50 approach may be taken.