"Threatening" email from PM re: smoke alarms (VIC)

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The agents are agents in the legal sense so they can enter contracts on behalf of the owner without warning, as long as the agency agreement permits it.

 

Investors should be careful where a new lease to an existing tenant is applied as some of the legislation vaguely implies that smoke detector needs to be in place and working and in some instances new batteries (refer especially in QLD).

 

Yep. Mitigation of risk.

 

OK - here is my response. What do you think?

Dear xxxxx

Please advise me where in the Residential Tenancies Act it states that a Landlord is responsible for ongoing maintenance of smoke alarms, as I cannot find this. I am not sure that the Victorian Building Authority (which you quote) covers Landlord/Tenant legislation.
All I can find is that on the MFB website it states "
It is the tenant’s responsibility to:

• Test the smoke alarm every month to make sure it is working
• Contact their agent/Landlord if the smoke alarm is not working"

Please do not incur any expenses of this nature without my authorisation (lack of acknowledgement is not to be taken as acceptance).

I do not wish to be covered, nor do I wish to be responsible unless the residential tenancies act states I legally have to be.

JB

 

I would quote exactly where it says on the lease..
eg. paragraph 4 on lease between signed 21 /December 2014 states
'It is the tenant’s responsibility to:

• Test the smoke alarm every month to make sure it is working
• Contact their agent/Landlord if the smoke alarm is not working'

Just so the agent know which laws/ agreements they are abiding by,
Confirm with VCAT ( the property is in Vic? ) and your insurer as well, 'unless the residential tenancies act states I legally have to be.'

I hope this helps!

 

Agree with quoting the lease and ensure that you request for a reply confirming receipt from the PM.

Also take a quick look at your agency agreement to ensure that you have not allowed them to opt you in on any other maintenance issue. As a precaution, include in the letter that under no circumstances do you allow the agency to enter into similar agreements without your express written authority.

 

The concern is not the statute law but your common law duty of care. The statute is the absolute minimum level of responsibility you have to take as a landlord, in order to avoid a fine and/or potential prosecution by the state.

But under the common law, landlords owe a duty of care in negligence to their tenants, and it would be to avoid potential exposure in this regard that your PM would be recommending the smoke inspections.

It is possible to comply with all statutes but still be in breach of your duty of care; the duty of care standard can be higher than the statutory minimum.

 

Thanks but I think the PM is recommending this to increase their revenue and to decrease their liability.

The relevant section in the lease which I have quoted to them states -


35. The tenant must:
a) Check each smoke detector in the premises weekly to confirm that it is kept fully operational. These checks are to ensure the safety of the tenant and the security of the premises.
b) Replace the battery in each smoke detector on or about the 1st January each year (or earlier if it becomes necessary)
c) Immediately notify the landlord/agent of any faulty smoke detector (and confirm this advice to the landlord/agent in writing the same day)



JB

 

The PM has no liability. You as landlord owe a duty of care. You also can't contract out of a duty of care.

The PM gets no revenue; that would be illegal. It's an urban legend.

 

I thought I'd clear it up for all here.

Smoke alarms are the responsibility for the owner to maintain, but the tenant to check and change batteries during their tenancy.

It is not compulsory to have smoke alarms serviced on an annual basis, nor gas heaters every 2 years. It is a suggestion.

There is no increase to revenue for the agency whatsoever, but it can decrease liability - it wouldn't be the first time a PM has been held responsible for the actions of their clients. I do include smoke alarm servicing in my landlord packs and recommend it, but as it is not part of the legislation I cannot and will not force my owners.

Gas heaters I insist this is done every two years, as it helps to ensure the unit is running efficiently and unlike smoke detectors it cannot be detected as being dangerous by a simple push of a button.

I ask tenants to test smoke alarms at routine inspections, but simply pushing the button won't tell me if it will work in the event of a fire. I do not personally test them for liability reasons, but I will have them replaced with 24 hours if one is faulty.

 

The first time I got one of 'those' letters from a PM, I saw red for a while. It wasn't so much about the cost, as it was the compulsory opting in unless you contacted them within a certain time period, and I think, at the time, the cost was much higher.

I've chilled a little since then. I'm certainly NOT going to run around all my properties making sure they are all working, and changing batteries, so I just let them do, what they do & pay up, knowing that I'm not going to be held liable.

 

Thanks Lil Skater. Just summarising:
- smoke alarm : not legislated but is highly recommended. Opt in by owner.
- gas appliances: not legislated but is highly recommended. You would ensure owners sign up for this one.
- apart from duty of care consideration, these two checks are not documented in contracts/agreements/Acts etc? (not trying to avoid, just trying to understand).

and lastly, would you be able to recommend a supplier for the gas appliance check?
Thanks heaps!

 

For those not sure I'd suggest checking your individual State/Territory Regs

This is what we have on the commerce.wa.gov.au site

Smoke alarm laws publication

And

DFES

 

I'm getting the general vibe whereby owners want to mitigate their risks by having a smoke alarm company service the smoke detectors in their properties and it's made me curious.

What exactly makes these smoke detector companies subject matter experts in the first place? Is there a governing body for these sorts of companies which certifies them as competent to perform these checks?

If the company you employ isn't officially recognized and endorsed by a government body how exactly can any risk belonging to the owner be mitigated?

 

They hold themselves out as experts. Lots of "experts" that we employ aren't certified or government-regulated, but we still use them.

In the case of a fire due to defective / inadequate smoke alarms, a court will ask what the landlord did to mitigate the risk of fire. The landlord will answer - if they use such a service - "I employed a smoke alarm inspector to conduct annual checks".

The court will then ask whether that was a reasonable way to mitigate the risk.

Given that there are no qualifications for smoke alarm inspectors, employing a company that holds themselves out as experts - in the absence of blatant evidence of their incompetence - would likely be viewed as a reasonable step to take, in which case the landlord will have fulfilled their duty of care.

The tenant may, if the company did the inspections incompetently, have a case against the smoke alarm inspectors.

But if you do it yourself, and you screw it up, it's all on you.

 

Lil, I am sure that you bring your preference for the bi annual inspections up front in the management agreement and would never just issue a generic letter to your landlords.

 

I'd highlight Terry's original point in the response - you cannot take silence as acceptance. Big contract law no-no.

 

But in this situation the agent is the owner. So they can enter into this agreement on the owner's behalf as the owner would probably have already authorized it.

 

Except that you've already authorised the agent to enter such an agreement on your behalf. This is more like the courtesy email: "Unless we hear otherwise by close of business Thursday, we're sending an electrician to fix the broken rangehood on Friday."

Ooops - snap!