John Shingleton
Director of Onlinelawyers
www.onlinelawyer.nz
There is a little-known section of the Health and Safety at Work Act 2015 (HSAWA) which places a specific health and safety obligation upon landlords, in addition to the primary obligation of all PCBUs.
What has surprised me is how many leases do not specifically address this potentially significant liability.
Briefly, within the wording of s42 of the HSAWA is an obligation on landlords to ensure, so far as is reasonably practicable, that the premises, any fixtures, fittings or plant supplied under lease that are used as or for a workplace or any of these that are being commissioned, installed or constructed and intended as or for a workplace, must all be without risk to the health and safety of any person.
What this means in layman’s terms is, as a landlord, you are potentially liable for hefty fines if anybody gets hurt while in the premises and it is proven you had not taken reasonable steps to prevent the harm occurring.
The HSAWA does not allow you to shift your obligation onto the tenant. This means, apart from making sure the premises, any fixtures, fittings or plant are checked so they comply with current standards of health and safety, you can only rely on a generic clause of the lease which obliges a tenant to comply with statutes and regulations.
The question that arises here is whether, in all circumstances, simply relying on the generic clause of the lease satisfies your health and safety obligations.
My view is that this does not necessarily satisfy the underlying s42 obligation, as there may be specifically hazardous or risky characteristics of a premises or fittings, fixtures or plant which would require a landlord to have in place some defined rules as to safe use.
But, because the standard lease does not expressly bind a tenant to complying with a landlord’s rules of safe use, if you require the tenant, its workers and visitors to the premises to comply with these rules, you will need to include an additional provision in the lease document.
Recently, I was advising the landlord of a building used as a factory. There were several features which were hazardous and created identifiable risks. My client wanted to make sure the tenant had appropriate health and safety policies that addressed the particular hazards of the building. We achieved this through changing the wording of the lease.
There are other aspects of current health and safety legislation that you may not be aware of. It pays to obtain good advice, as ignorance of the law is no good excuse.
