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How To Comply With The Smoke And CO Regulations
We have previously reported about the smoke and CO regulations which were initially thrown out by the House of Lords but now it seems they have been finally approved.
The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 apply to England only and will commence from 1 October 2015.
The duties under the regulations discussed below apply to almost all tenancies or licenses in England (new and existing) from 1 October 2015 with a very limited number of exemptions. One exemption is where there are lodgers in a landlords own home. Although licensable HMOs are exempt, every HMO would require some sort of fire alarm system anyway under the Management of HMO regs. In addition, changes are being made to the Housing Act 2004 in respect of conditions in HMO licenses granted in England on or after 1 October 2015 ensuring smoke alarms and CO alarms are fitted.
Installation of smoke alarms
Regulation 4 contains the main requirement for smoke alarms and provides that a landlord must ensure that during any period on or after 1 October 2015 –
a smoke alarm is equipped on each storey of the premises on which there is a room used wholly or partly as living accommodation
When determining a storey or room, a bathroom or lavatory is to be treated as a room used as living accommodation. As a result, a half landing containing a bathroom or toilet alone would be counted as a storey and require a smoke alarm. Where there is a mezzanine floor which is just used for access only, it is likely this will not be counted as a storey 1
There is no definition as to what is a suitable smoke alarm for the purpose of the regulations therefore any type will be sufficient. We would suggest the best ones to fit would be either a mains interlinked with battery backup or a 10 year battery type because in the end they will cost less by needing less maintenance and fewer batteries throughout their life.
Where to fit the alarm is not provided for in the regulations (other than on each storey). As a general rule, the best place to fit a smoke alarm is in a hallway leading to an escape route. In a regular 2 storey house, this would mean installing one on the ground floor and one on the first floor hallway by the stairs.
Installation of CO alarms
Regulation 4(1) further requires that –
a carbon monoxide alarm is equipped in any room of the premises which is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance
Note that a CO alarm is only required to be fitted in a room where there is a solid fuel burning combustion appliance (i.e. rooms containing an open fire, log burning stove, etc.) According to guidance issued by the Department for Communities and Local Government –
In the Department’s view, a non-functioning purely decorative fireplace would not constitute a solid fuel burning combustion appliance.
Landlords should be sure to check their tenancy agreements and ensure that a tenant is prohibited without prior written consent from using any open fireplace in the property just to be sure (unless a CO detector is fitted in each room with a fireplace).
Checking alarms
There is a further obligation to ensure that – (my highlights)
checks are made by or on behalf of the landlord to ensure that each prescribed alarm is in proper working order on the day the tenancy begins if it is a new tenancy.
This applies to both the smoke and CO alarms.
“On the day the tenancy begins” is defined as –
on the day on which, under the terms of the tenancy, the tenant is entitled to possession under that tenancy.
The checking only needs to be done on a new tenancy which means a tenancy granted on or after 1st October 2015, but does not include –
- a tenancy granted in pursuance of an agreement entered into before 1 October 2015;
- a statutory periodic tenancy which arises on the coming to an end of a fixed term shorthold tenancy;
- a renewal tenancy where the landlord, tenant and premises let are the same (or substantially the same) as previously let.
The guidance issued by the DCLG suggests a suitable way of showing the alarms were tested on the start day of the tenancy by making –
provision for the tenant to sign the inventory to record that the required alarms have been tested by the landlord and the tenant is satisfied they are in working order.
Such a requirement is clearly going to be problematic for large student letting agents who may have hundreds of students moving in on a single day!
What “proper working order” means is also not defined. Does this mean simply pressing the test button on the day? But, that doesn’t confirm the alarm is in proper working order particularly on CO detectors – it only checks the sounder is working. On occasion, we test all our smoke alarms with very special smoke spray and then time how long it takes to react. That is how to properly test a smoke alarm but it shouldn’t be done too often that way because the spray can cause damage to the detectors over time if not done properly.
From speaking to several fire alarm specialists including fire officers, the best way to check smoke alarms is as follows:
- always follow the manufacturers instructions first and foremost for testing
- where the alarm is a simple mains interlinked, 10 year battery or cheap 9v battery type, pressing the button on the day the tenancy begins should be sufficient assuming the alarm sounds correctly
- where the system has a panel on the wall (usually in the communal hallway), visually inspect the panel to ensure there are no faults, press the evacuate button to test the system and for added comfort (and if competent) test a manual call point which is on the same zone as the relevant smoke alarms. Smoke spray can be used but only if you are competent in carrying out that type of test and spray shouldn’t be used on every occasion (seek advice). If the sounders do not operate as they should immediately seek advice from a competent fire alarm engineer
- the regulations do not apply to licensable HMOs so the licence conditions should be consulted and the alarm would normally be subject to regular testing and maintenance under the licence in any event.
An article about testing CO detectors is available here.
Enforcement
Although many are quite rightly troubled by the fact that landlords only have two weeks to install smoke and / or CO alarms in all rented property in England by 1 October 2015, it is worthy of pointing out that there is no penalty in the regulations for a failure to do so in the first instance.
The regulations say that where a local authority has reasonable grounds that a breach has occurred, they must then serve a remedial notice requiring the landlord to take remedial action.
Remedial action means action to install, repair or check a prescribed alarm is working.
Regulation 6(1) provides that a landlord must carry out any works specified in the remedial notice within 28 days and it is a failure to comply with the remedial notice which attracts a penalty.
Where a local authority is satisfied, on the balance of probabilities, that a landlord is in breach of the remedial notice, a penalty charge of up to £5,000 as set by the local authority will be payable. A penalty charge notice must be served on the landlord within six weeks after they become aware of the landlords failure to comply with the remedial notice.
A landlord will not be in breach of the notice –
if the landlord can show he, she or it has taken all reasonable steps, other than legal proceedings, to comply with the duty.
This will allow for example the situation where a tenant refuses access to install an alarm.
Where a landlord is in breach of a remedial notice, the local authority must arrange for the remedial action to be taken themselves as long as the occupier gives consent.
If a landlord disagrees with a penalty charge notice, the landlord may seek a “review” of the notice in the first instance which must be considered by the local authority. If the landlord remains dissatisfied after the review, an appeal may be lodged with the First-tier Tribunal. The Tribunal may quash, confirm or vary the penalty charge notice, but may not increase the amount of the penalty charge.
Further guidance
The Department for Communities and Local Government have published some guidance – The Smoke and Carbon Monoxide Alarm (England) Regulations 2015: Q&A booklet for the private rented sector – landlords and tenants which is worthy of a read. Have in mind the government issued guidance concerning tenancy deposit schemes when that commenced which turned out to be wrong in some very important areas. This smoke and CO alarm guidance should not be replied upon too heavily.
- See question 14 of the DCLG guidance booklet on the regulations which provides: “In the Department’s view, for the purpose of these regulations, a mezzanine floor would not be considered a storey.” ↩
Do you know the position in Wales please?
There is no requirement to comply with these regulations for properties in Wales. However, clearly it has to be a good idea to follow a very similar regime in order to protect properties and people.
So if a property had a gas boiler for the central heating in the garage and there were no other “solid fuel burning combustion appliances” in the property does that mean a carbon Monoxide alarms isn’t needed?
But if the boiler was in one of the living areas it would need one?
No, a gas boiler never needs a CO alarm under the regulations. it would need to be a “solid fuel” appliance e.g. a log burner or coal fire.
So why only Solid Fuel appliances, it was our understanding it was to be all fossil fuelled appliances with open flues this would include open flued Gas bot Natural and LPG and Gas Oil and Kerosene. All fossil fuels will kill. Harringtons Estate Agents in Wickham Hampshire and ourselves Harpers Weybridge have taken the approach that all fossil fuels require it.
Why didn’t the government make the new law apply across the board and include owner occupiers?
I have log fires in some properties, they have smoke alarms, these properties have been using fires pre October 1st, can i carry on regardless and install CM detectors with a new tenant?
No, you should have installed CO detectors for existing tenants from 1 October. Just get on and do them now and you should be fine.
Where you refer to “Renewal tenancy” do you mean where the tenancy is extended by means of a renewal memorandum. I have checked the legislation and must admit finding it difficult to find clear guidance
Yes, I see no reason why that wouldn’t be deemed as a renewal.
On Gas Certs there is a section at the bottom which states :- Smoke Alarm Fitted and working . Some gas engineers say Yes, some say No, others say NA. Does the fact that this section is on the gas cert mean that Gas Engineers can test / ensure the Smoke alarms are working, especially as land lords should get a new gas cert on change of tenancy
The requirement to check the smoke or CO alarms are working correctly needs to show they are in working order on the first day of the new tenancy, as per the date on the tenancy agreement.
You are most likely either to have an existing CP12 gas inspection certificate (dated within 12 months of new tenancy start date which is fine to use for a new tenancy) or to have arranged one prior to the new tenancy in which case it won’t be on the first day of the tenancy. You might have a situation where a CP12 gas inspection is done whilst the property is void and you might argue that due to no other access or works taking place that the check done by the gas engineer is therefore still valid for the first day of the tenancy – this might be true in practice but it does not strictly comply with the alarm Regulations.
The recommendation is that the alarm check is done as part of the overall inventory check and sign off on the first day. The Regulations do not specify exactly how to do the check. Most people will simply press the button to check the sounder is working. For smoke detectors in theory you should do a smoke test but this can ‘blunt’ the detection system if overdone.
There is a misconception that a fresh CP12 gas certificate is required for every new tenancy. CP12 certificates are certainly needed every 12 months, but prior to a new tenancy landlords are required to have a gas safety check carried out – this is not the same as a CP12 certificate although many landlords choose to do this out of simplicity. The requirement for this check is meant to ascertain for example if the outgoing tenant has left any dangerous situation or appliance that requires remedial action. The Regulations are wonderfully vague about what constitutes a gas safety check and who should carry it out – there is a recommendation that the check should include a soundness test on pipework which only a qualified gas engineer can do.