Qld smoke alarm servicing and compliance

A reminder to all landlords and PMs in Qld regarding smoke alarm servicing and compliance.

In property management, the single most important and FUNDAMENTAL part of smoke alarm compliance in Qld is ensuring that properties are being assessed within 30 days PRIOR to a lease start or renewal date, as set down in the Fire and Emergency Services Act 1990 (Qld) Section 104RD(1).
This means within 30 days prior to the date stated in Item 6.2 of the Form 18a General Tenancy Agreement, not the date that the tenant moves their furniture in.

Smoke alarm assessments conducted on or after this date, or more than 30 days prior to this date do not satisfy the legislative requirements.

It is imperative that if you are engaging a smoke alarm servicing and compliance business, electrician or handyman, that they are meeting this requirement.
Remembering that these services are sold to you for the purpose of removing any risk of litigation from you (the landlord).
Many landlords and PMs engage contractors to act on their behalf under Fire and Emergency Services Act 1990 (Qld) Section 104RJ(1).
If your contractor is attending outside the required 30 days PRIOR to the lease start or renewal date, for whatever reason, then you the landlord remain at risk of litigation and in breach of the legislative requirements.
In a nutshell, compliance assessments done outside this 30 day window are worth nothing more than the paper they are written on and in these cases, you should not be paying for the service at all .... unless of course any assessments done outside this 30 day window are in addition to the assessments completed within the required 30 day window..

There are many great service providers out there.
There are also many service providers (some well established) who have dropped the ball so-to-speak in this most fundamental area of smoke alarm compliance and risk management.

Many landlords and PMs are unaware of this crucial part of the legislation which is at the very core of smoke alarm compliance.
Some landlords and PMs assume that these assessments can be completed 30 days either side of a lease start or renewal date. This is incorrect.
Many landlords simply place their trust in their smoke alarm service provider and assume that once a compliance report is issued, then the legislative requirements have been met.
Only if the assessment is completed within the 30 days PRIOR to the lease start or renewal date.

When selling a car, you must first have a current Safety Certificate issued prior to sale.
This is essentially the same thing.
It is a pre-tenancy compliance assessment prior to a new tenancy agreement being entered into.

Ask yourself, is your current service provider attending your property/s within the required 30 days prior to lease start or lease renewal??
If the answer is "no", it's time to change to a service provider who does.

 

Within 30 days doesnt mean a test performed on the lease date does not comply. If that meaning was meant to be so literal to exclude the lease date it would say PRIOR to. The word PRIOR isnt contained in the legislation referred to below (s104RD(1)).

Within 30 days before the start of a tenancy in a domestic dwelling, the lessor must test each smoke alarm in the dwelling in compliance with section 104RAA(3)

Many of the services offered by smoke alarm companies dont meet with the requirements that oblige the tenant to check batteries, test alarm, clean alarm. The law is quite clear about that responsibility. Some alarms testing companies have created a scare campaign that is misleading too and its imposing unnecessary obligations on landlords when it need not.

The reality is that the requirement to clean, test and install within 30 days is complex and when the tenant obligations are added there seems a effective way to manage all compliance by using a service provider BUT...The tenant should also be engaging them for some of the services. The responsibility remains with the tenant for some issues.

 

Hi Paul

I'll address each of your comments in bold below.
You stated:
"Within 30 days doesnt mean a test performed on the lease date does not comply. If that meaning was meant to be so literal to exclude the lease date it would say PRIOR to. The word PRIOR isnt contained in the legislation referred to below (s104RD(1)).

Within 30 days before the start of a tenancy in a domestic dwelling, the lessor must test each smoke alarm in the dwelling in compliance with section 104RAA(3)"

Incorrect.
"Within 30 days before the start of a tenancy ...."
With the start of the tenancy in Qld being the DATE stated in Item 6.2 of the Form 18a GTA, this date is effective from 12:00am midnight.
Therefore to meet with FESA90(Qld) Section 104RD(1), this check must be completed within 30 days prior to 12:00am midnight of the date specified in Item 6.2 of the Form 18a GTA.
Item 6.2 of the Form 18a GTA is populated by a date, not a date and time.
As Wylie has stated, by stating a date in Item 6.2 later than the date the tenant/s may collect keys to start moving in, this would be considered to be complying with the legislation, as the trigger is the date stated in Item 6.2.
The legislative basis of this legislation is very much so "literal".

Prior, before .... same thing.
Oxford Dictionary states"
"Before"
During the period of time preceding (a particular event or time)
as preposition ‘she had to rest before dinner’
‘the day before yesterday’
as conjunction ‘they lived rough for four days before they were arrested’
as adverb ‘his playing days had ended six years before’
‘it's never happened to me before’
prior to, previous to, earlier than, preparatory to, in preparation for, preliminary to, in anticipation of, in expectation of
previously, before now, before then, until now, until then, up to now, up to then

"Prior" being the first listed synonym.
Would you like the definition of "Synonym"?

You stated:
"Many of the services offered by smoke alarm companies dont meet with the requirements that oblige the tenant to check batteries, test alarm, clean alarm. The law is quite clear about that responsibility. Some alarms testing companies have created a scare campaign that is misleading too and its imposing unnecessary obligations on landlords when it need not.

The reality is that the requirement to clean, test and install within 30 days is complex and when the tenant obligations are added there seems a effective way to manage all compliance by using a service provider BUT...The tenant should also be engaging them for some of the services. The responsibility remains with the tenant for some issues."

You've gone right off point here.
Many of these services are not to meet tenant obligations, but landlords.
FESA90(Qld) prescribes separate requirements on both landlords and tenants.
In the case of lease renewals, there is a 30 day overlap of obligations.
You will find that most smoke alarm service providers (here in Qld) offer their services to meet the LANDLORD'S obligations, not the tenant's.
In fact, most service providers (here in Qld) leave information with tenants highlighting their responsibilities during their tenancy, that are separate to the services provided by the service provider at the time.
Using a service provider to meet both tenant obligations and landlord obligations would be messy and as previously stated, I know of not one smoke alarm service provider in Brisbane that offer to do both under a service fee payable by the landlord.
Of course tenants, like landlords can engage a service provider to meet their requirements if they wish to do so.
The requirement to test, clean and install within the 30 days before a tenancy is not complex at all, it is very simple.
I will agree with you that there are in indeed some service providers who do use scare campaigns and make very simple legislation seem complex.
It is often these same service providers who fail to get the basics right in failing to assess properties within the required "30 days before the start of a tenancy".

 

First the technical... It's actually the "within" that's the key word. "Before" is just as opposed to "after", but in a legal context, the interpretation of the word "within" has - funnily enough - been discussed at length, including in Susiatin v Minister for Immigration and Multicultural Affairs, which goes over earlier cases.

The legal encyclopedia The Laws of Australia summarises the position (at [25.1.1170]), stating that 'where a provision states that something must occur “within” a period of time of a certain event, the day of the event is generally not included'.

Having said that, now for the pragmatic...

Let's say that you're a landlord and were unfortunate enough to have your property experience a fire during a tenancy. You had the smoke alarms tested on the morning of the day they signed the lease, before the tenant picked up their keys, rather than the previous afternoon - not strictly in compliance with the legislation.

When somebody's suing you for civil or criminal negligence, they not only have to prove that you were negligent - and this may, in a very technical sense, constitute a breach of a statutory responsibility - but in order to be successful in either a criminal or civil action, they also have to causally link that negligence to the loss or damage they suffered.

So a prosecutor or tenant civilly suing you would have to prove that the fact that you tested the alarms more recently, was what caused the fire. In other words, that the fire wouldn't have happened, or would have been less severe, if you'd tested them the previous afternoon, instead.

I'm not liking their chances.

And if, in the absence of a fire, some overly pedantic fire safety inspector checks the records and figures out that you tested on actual lease start date and wants to prosecute you for breaching the rules and getting the smoke alarms tested more recently and having more up-to-date checks than is strictly required, I'm pretty sure you'll find a lawyer who'll be willing to represent you. Maybe even pro bono. And you may even find a judge who'll tell that fire safety inspector to stop wasting her or his time and the public's money.

Because the law may be an ass at times, but the courts do try to keep in mind: what is the purpose for which this law has been enacted? This law was enacted to keep housing safe from fire, and ensure smoke alarms were functioning and that landlords and tenants were fulfilling their responsibilities in that regard.

Punishing a landlord who does smoke alarm tests the morning before a tenant collects keys, rather than the previous afternoon, is not consistent with the purpose for which the legislation was enacted.

I am not a lawyer and this is not legal advice.

 

Wow Think I upset someone who has a business that checks smoke detectors. I will refrain from bold as its like shouting.

Havent gone off point at all....Thats precisely where many service providers are running around shouting wolf. The Act clearly defines many tenant obligations and many of the annual requirements many service providers sell are NOT landlord obligations at all. eg Test battery each 30 days (tenant issue outside scope of the service in any event), clean annually, advise owner of battery issue or failure etc. Technically other than to deal with a tenant issue and an initial occupancy with a new battery+test a landlord has few responsibilities. eg Who checks the expiry date after that - IMO its a stupid idea that this is printed on a sticker on the underside of an alarm. It should be visible externally. It would assist tenants comply as much as owners.

I already had been advised by my PM that all new tenancies must comply and so I asked and they have introduced a new charge for an initial compliance test. They do this within 10 days of the keys handover and WILL NOT provide the test on the day of key handover to ensure time to rectify any defect. I have also advised them I do not need an annual inspection. Apart from the (new) hardwired alarms I also have numerous battery 10 year life alarms well beyond the minimum requirements (two upstairs and three downstairs). These are replaced on a new tenancy as I have no interest in units that fail or need repeated testing. This cost to me offsets the annual charge. Annual testing is then the tenants problem. Ironically only one unit has ever failed and that was at home. The tenant is instructed with an attached page to their lease of their obligations. The notification also warns them about using powerboards and poor quality electrical devices of dubious origin.

The sign a copy to acknowledge their responsibility...Thats rare I believe. Whats also rare is I have a record of the alarm expiry dates so I know what MUST be replaced without having to enter the premises.

I see the point to the QLD laws esp after that large family of pacific islanders had such a tragic outcome. BUT they have made the law so complex in addressing many areas of failure......Tenant obligations are different to landlord obligations as the Act reads...and its all being pushed onto owners by service providers who hassle PMs. And PMs dont want the legal compliance burden.

Avoiding the annual fee is simple unless you use old inferiour quality alarms that have a short battery life or that use replaceable batteries. And an annual fee doesnt encourage changed practices so people keep buying cheap crap. I would rather a $40 10 year sealed photoelectric alarm from HPM than a $10 chinese no name battery thing on ebay.

I would argue that clever service providers could change their practices but I guess an annual fee is a good business model.

 

I hadn't looked at the legislation for a few years. I think when they first introduced the legislation it was a lot tougher on landlords and the annual servicing was pretty much a "you'd be mad not to" thing for landlords, because the requirements on landlords were so onerous.

Seems like it's much more reasonable now, but that the fire safety companies were on a good thing, and a lot of landlords - and maybe PMs - haven't realised that a lot of responsibility has been put back onto tenants, so they just "keep doing what they've always done..." (PMs - can't be bothered educating landlords and tenants, maybe?)

The motive of the fire safety inspection companies is pretty obvious...

 

I think they have to be checked and tested every year in case they fail. ie The battery might be good, but it might just have "broken".

 

I want to know what the service company does with my two alarms that they stated were both faulty and had to be replaced a few months ago. Funny how both of them with a ten year warranty can fail, in just two years, and I didnt get the old ones returned to me to claim the warranty either. And PM companies wonder why we leave them.

 

Guys guys guys, way off point.
Respectfully, start or reply to a different post that is relevant to your points.

My post isn't to argue the merits of the smoke alarm legislation.
It is after all, that .... legislation.

Nor is my post about smoke alarm service providers "shouting wolf" and telling landlords they have to meet tenant obligations or to meet obligations that are non-existent, purely to make a buck.
Completely separate issues to my point.

My point is this:

If you are a lessor, paying for a service that is legislatively driven, make sure that your service provider is meeting your expectation as a consumer and meeting your legal obligations on your behalf as required of you under FESA90(Qld), as you are having them act on your behalf under Section 104RJ(1).
Specifically in relation to Section 104RD.
104RD Testing smoke alarms
(1) Within 30 days before the start of a tenancy in a domestic
dwelling, the lessor must test each smoke alarm in the
dwelling in compliance with section 104RAA(3).
Maximum penalty—5 penalty units.

Within (being inclusive of) 30 days before the start of a tenancy (being the 30 days before 12:00am midnight of the date placed in Item 6.2 of a Form 18a).
You can put whatever day you like in this box.
It really is that simple.
Again, rather than provide your 'opinions' or 'interpretations', if you disagree, feel free to contact the Queensland Department of Housing and Public Works for clarification, or have a solicitor provide you with a legislative basis.
The maximum penalty for not meeting with this legislative requirement is 5 penalty units, under the Queensland State Penalties and Enforcement Register, this is equivalent to $630.75 (as at 1 July 2017).

Cut and dry.
Therefore if you have a service provider who is selling you a service to remove risk of litigation from you by meeting Section 104RD on your behalf, and are attending after the start of a tenancy, you should not be paying for that service at all.

If you have a service provider telling you that a once per year check (for example, 1 April) will suffice, this in incorrect, unless of course there is only a lease starting every year at the said property where 1 April falls within 30 days before the start of a tenancy (lease start date).
If you have a service provider telling you that checking the smoke alarms within 30 days either side of the lease start date, this too is incorrect.

Now, we are not talking about potential civil action here.
Civil action can be brought upon anyone at any time at a cost.

Example: A presumed speeding driver kills or injures someone in a motor vehicle.
This driver can have civil action brought against them, yes.
Can this be up for legal interpretation as to whether speed was the cause, blah blah blah, yes of course.
However, what is not civil and not up for debate is if this speeding driver drove through a speed camera 500m up the road, they still incur a speeding infringement from the authorities at an amount prescribed under the State Penalties Act.
Completely separate from any potential civil action.

If a tenant is maimed or killed in a house fire, a working smoke alarm having been checked after the start of a tenancy rather than before the start of the tenancy is unlikely to have any bearing on a civil case, as the alarm was either working or not at the time of the incident. Agreed.
However, in any investigation, whether being a contributing factor or not (clearly not), if found that the lessor failed to meet their obligations under Section 104RD, they could face the penalty of $630.75 (current as at 1 July 2017).
See the difference.

Lessors only pay for these services to cover their backsides.
If it was sold by service providers as a 'safety check', most lessors would say to their PMs that unless they have to pay, they'd rather not, given the amount of other costs involved in owning an IP.
They only pay for these services to meet legal obligations.
Whether or not we all agree with the current legal obligations on landlords is beside the point; lobby your local MP if you don't agree with the legislation.
So, if you're a lessor, paying a service provider to meet your legal obligations, make sure they're being met.
Simple as that.

 

If you were charged for replacements, it would be nice to be provided with a thorough explanation of the fault and/or given the opportunity to recoup some costs by sending the 'faulty' ones to the manufacturer for assessment.
Yes I agree.
Although smoke alarms have a ten year service life, most only offer a five year manufacturer warranty.
Some do offer a ten year warranty too.

 

Even under the new legislation being phased in until 1 Jan 2027, smoke alarms with ten-year lithium batteries must still be checked in accordance with FESA90(Qld) and the type of testing is prescribed under AS1851.15.

 

@Michael Thomas, what’s your angle? Are you a solicitor, from a smoke detector company, a PM, a tenant? You seem overly passionate on the subject.

No offence intended by the way, I just think people should be straight about their motivations...

 

To repeat myself, 'within' is exclusive when used legally in Australia. I'm not yet admitted as a lawyer, but did the last exam for my LLB (Hons) yesterday, and quoted authoritative legal sources to back that up. If you want to contradict that, please cite your sources.

 

Thanks for the patronising comments, but yes, I do, actually. You only think it's beside the point.

A better analogy would be that the law says you have to have a roadworthy every 6 months with a grace period up to 8 months, and you get them done every 5 months. So you get one done at 5 months and 10 months, and there aren't any done in the period between 6 and 8 months, so some cop decides you technically haven't complied, and decides to fine you.

The law isn't that much of an ass, and any cop that tried to impose a fine in such circumstances would be laughed out of court. From Weedon v Davidson, one of the oldest precedents in statutory interpretation: "It is necessary, in construing an Act which alters the law, to inquire what was the state of the law before the alteration was made, what was the mischief intended to be remedied, and what was the nature of the remedy provided. That is the oldest rule laid down for the construction of a Statute".

So the court, in deciding whether a fine was appropriate, asks: why was this law imposed, with a fine attached? To make sure people get roadworthies - or to make sure landlords have their smoke detectors tested, and make the roads/homes safer.

Statutory compliance is a factor relevant to whether you can be sued in negligence, which should be a far bigger concern, with respect to potential liability, as a landlord, than a potential few-hundred dollar fine, so it is relevant to this discussion. If you're a PM and can't see this link... that's disconcerting.

 

I've had lots and lots of problems with smoke alarm companies in Brisbane, problems as in they do unauthorised work or the alarm failed not long after they have serviced it, with things like flat batteries or the technician they sent out didn't understand how to remove the alarm from the ceiling to replace batteries without breaking it. I've also had discrepancies between legislation requirements between two companies when the PM changed smoke alarm companies.

With a ladder it's less than five minutes work to check an alarm in most single story houses and I have done so without any issues in the past 2 years. Everything required of testing can be found online, only thing you need to watch is keeping up with regulations but most good PMs can inform you on this or find out for you.

As for the 30 day prior, its just a laugh as you can get 1 weeks notice of a tenant moving in or 2 weeks notice to vacate and most companies will tell you where to go if you tell them to be there in less than a weeks notice. People just need to be realistic in what they say.

 

I bet $100 we have a business self promoter. Who will provide the ABN For Thomas or a company ? Happy to provide free tax services to prove that issue

Happy to double down i am confident