FOCUS COVID-19 – legal implications
before making any structural alterations. The courts found that this amounted to ‘control’ of the premises and accordingly both pub chains were found to be bound by the FSO. These kinds of leases are normally for
substantial periods of time. Very often the tenant is expected to enter premises which have been unused for long periods of time and to commit to substantial investment in the premises. Tenants are unlikely to want to invest in such businesses at this time, unless the premises are statutorily compliant.
Post pandemic world
Following the COVID-19 pandemic, ‘lockdown’ and the resulting inevitable recession, rents are surely likely to fall. Tenants will be in a much stronger position to argue for rent to be calculated as a percentage of revenue, and basic statutory compliance as a starting point for negotiations. Landlords need to understand that fire risk management responsibilities should be seen as a partnership, where both parties can benefit. Landlords can protect their premises and
benefit from lower insurance premiums and obviously the risk of fire. Their premises will become more marketable. Tenants can deal with the maintenance of premises and risk assess their business in accordance with the sound infrastructure provided by the landlord. Under the FSO, Article 22 already requires those who share fire responsibilities in relation to premises to ‘co-operate and co-ordinate’ to
38 JULY/AUGUST 2020
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ensure compliance. An outdated clause that attempts to place all the responsibility upon one party is not consistent with the requirements of the FSO, and has no place in today’s leases or contracts. It should now be negotiated out. In my experience, where more than one party has fire risk management responsibilities and breaches are found in premises, all parties will face enforcement measures unless their leases or contracts specifically attribute fire responsibilities to each party. Article 22 is very clear. It requires all parties
to cooperate and coordinate fire safety measures to ensure the compliance of the premises. The courts will not tolerate parties blaming each other. In one case earlier this year involving three defendants who all had fire risk management responsibilities for premises, the judge began his sentencing by saying: ‘I notice from the papers that the defendants are blaming each other. I’m not having any of that. They are all responsible.’
Contract prerequisites
But it is not just the odd clause in leases that should be considered. Few commercial leases deal with the FSO and fire risk management responsibilities at all. This means that when breaches are found, both parties are likely to be liable. Care should be taken at the outset to outline the duties of the parties, and to make sure that they are set into the lease or contract.
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