Modern Building Services

16 MODERN BUILDING SERVICES MARCH 2023 FEATURE WORKING BUILDINGS C ommercial landlords have a duty to ensure their property is safe for tenants and other users, but if Facilities Managers (FMs) want to pass HVACmaintenance costs on to tenants and they are resistant, it can lead to a stalemate. With neither side willing to pay, essential maintenance is delayed. If matters remain unresolved, legal fees can be costly while critical HVAC systems may be operating inefficiently, at risk of breakdown and posing a danger to occupants. In the matter of who is responsible, the law can only take us so far. However, FMs and landlords can take steps to protect themselves and their interests. Evidence is the key to resolving legal disputes, therefore landlords must ensure they have a water- tight Lease Agreement in place that specifies responsibility for HVAC maintenance. Additionally, real- time HVAC monitoring technology can help to identify when problems have started and the root cause; improving clarity, control and transparency and crucially allowing landlords and FMs to pass on the cost of HVAC maintenance to tenants when appropriate. What does the law say? In residential property, rights and responsibilities are clearly defined for the most part, but business property is more ambiguous. This is because there are so many different types of commercial building and uses, and it would be impractical to lump them all together for the purposes of the law. The Health & Safety at Work Act 1974 states that employers or persons concerned with the premises (including landlords) owe the common duty of care both to employees and others who may use or visit the premises (including business tenants). This duty must be exercised so far as is reasonably practicable. Landlords are generally responsible for health and safety matters in communal areas, while tenants are responsible for matters such as compliance with fire safety regulations, temperature, lighting and ventilation control, toilet facilities and equipment safety. But how this relates to HVAC systems which run throughout the entire building and may service multiple tenancies is up for debate. Fixture or fitting? Fixtures are defined as items attached to the property, for example; lighting, toilets and building services, including HVAC systems, would fall under this category. Fittings are items that are not a permanent part of the building itself; for example, office equipment, shelves or cabinets. Generally, landlords and tenants are responsible for the maintenance and repair of all the fixtures and fittings that they own. Structural repairs would usually lie with the landlord, whereas non- structural repairs, for example, air conditioning and plumbing would be the tenant’s responsibility. It is clear that within this there is significant potential for misunderstanding and conflict. Commercial landlords should seek advice from a specialist commercial property lawyer who will ensure that all rights and responsibilities, including who pays for HVAC maintenance costs, are set- out clearly in the Lease Agreement. The demarcation of responsibility for repairs and maintenance in commercial buildings is something of a grey area, particularly where there are multiple business tenants. Steven Booth , Managing Director at Guardian Water Treatment, discusses what the law tells us about who is responsible and explains how Facilities Managers can tie up the loose ends and improve accountability. HVAC maintenance – who is responsible?