Landlords of all residential accommodation have duties for gas safety, and operators in the hospitality sector should be aware that they too can be responsible for this obligation. For example, it is common for tenants to be provided with accommodation above the pub that they lease, and if a customer books a room for the night in a hotel or pub, they will occupy that room under licence, so duties apply to their occupancy.
These duties in relation to gas safety are to repair, maintain and inspect gas pipework, flues and appliances in buildings which are occupied under a lease or licence for 7 years or less. Pub leases often fall within this time frame, so landlords of pubs should be alive to their obligations.
It is also important to note that the HSE specifically recommends that landlords carry out their duties in respect of gas safety even if they are a long-term landlord: “there remains an implied tenancy arrangement such as where accommodation is provided as part of the job – e.g. a publican.”
A change in requirements From January 2013 a change in requirements means that any appliances where there is a flue running through a void, so that it cannot be properly inspected, will not be issued with the necessary certification.
Currently by law landlords are required to:
- Repair and maintain gas pipe work, flues and appliances in safe condition
- Ensure an annual gas safety check on each appliance and flue
- Keep a record of each safety check for 2 years, providing a copy to the tenants within 28 days and to any new tenant before they move in.
- Gas safety checks must be carried out by a Gas Safe (the scheme that replaced CORGI) registered engineer.
Changes now address the fact that in buildings constructed or modified since 2000, the flue may be concealed. So the Gas Safety Register has issued new technical instructions to engineers that if they cannot see along the length of a flue, so it is not possible to say with certainty that a flue is safe and free from dangers such as carbon monoxide leaks, the installation will be classified as “At Risk”.
The occupant will be advised of this and, with their consent, turn off the boiler until inspection hatches are fitted and it can be re-inspected. A tenant who is advised by an engineer to turn off their boiler may decide to withhold their rent claiming that the landlord is in breach of a repairing obligation by failing to install the required inspection hatches.
Landlords should be careful about continuing to lease a property where it has been noted that the boiler is “At Risk” as this may invalidate insurance cover.
The cost of failing to check
Back in 2010 Enterprise Inns were fined £300,000 after a tenant died from fumes from a gas appliance in accommodation within the pub. The pub company should have ensured that annual gas safety inspections had been carried out. It was discovered that the fire which caused the carbon monoxide poisoning killing the tenant had not been serviced since 1979. Apart from the fine, landlords must consider the impact of negative press associated with such a tragedy.
Residential areas
Where there is a residential part to the pub and the lease is granted for less than 7 years the landlord will need to ensure that a safety check is carried out every 12 months on gas appliances and flues in the residential part. In the Enterprise case the gas heater was in the living room of the pub and the lease was for less than 7 years, so the fact that no checks had been carried out for a considerable number of years was a massive failing.
Non residential areas
The duty to inspect does not apply to non residential property. In a pub context, most leases will specify that the tenant is responsible for the safety of gas appliances and flues that solely serve the non-residential side of the pub. The landlord’s gas safety check will apply if the same appliance or pipework serves both the residential and non-residential parts of the pub. If a flue serves other premises too the lease should deal with who is responsible for its maintenance.
Action needed
From 1 January 2013 Landlords will need to ensure that, where there are concealed flues, inspection hatches are fitted. Hatches should be at least 300mm square and positioned within 1.5m of any joint in the flue system.
Footnote: responsibilities for caretakers
As tenants may decide to hand back the keys once the Christmas rush is over and the long quiet nights of January and February loom, it is important to manage the situation when a caretaker is left in charge. Where pubcos appoint a caretaker to live in and until a new tenant is found, if they sleep on the premises (and beware of those who bring an unofficial camp bed) the landlord will be required to carry out gas safety checks even though these may not have been its responsibility whilst the outgoing tenant’s lease was current.
