Smoke Alarm Compliance – What Could Go Wrong?
By Andrew Persijn, Special Counsel and Hannah Hewitt, Claims Portfolio Advisor at Carter Newell Lawyers
Readers of the REIQ Journal will of course be aware that amendments to the Fire and Emergency Services Act 1990 (the Act), which commenced on 1 January 2017, imposed additional obligations on property owners with regards to the installation and maintenance of smoke alarms in domestic dwellings.
From 1 January 2017, for any domestic dwelling being sold, or where a new tenancy starts or an existing tenancy is renewed, the Act requires:
existing alarms manufactured more than 10 years ago to be replaced;
any smoke alarms that do not operate when tested to be replaced immediately; and
existing hardwired alarms that require replacement to be replaced with a hardwired photoelectric type alarm.
Any alarm being replaced from 1 January 2017 must be replaced with a photoelectric type alarm which complies with AS 3786-2014.
In addition to the above, within 30 days before the start of a tenancy in a domestic dwelling, the lessor must test and clean each smoke alarm in the dwelling. The lessor must also replace each battery that is spent or almost spent. These obligations continue beyond the upcoming 1 January 2022 deadline.
From 1 January 2022, for any domestic dwelling being sold, or where a new tenancy starts or an existing tenancy is renewed, the Act requires smoke alarms in the dwelling to:
be photoelectric (AS 3786-2014); and
not also contain an ionisation sensor; and
be hardwired if currently hardwired, or otherwise to be either hardwired or powered by a non-removable 10-year-old battery or a combination of both.
be interconnected with every other smoke alarm in the dwelling so all activate at the same time.
Smoke alarms must be installed:
on each storey;
in each bedroom;
in hallways that connect bedrooms and the rest of the dwelling. If there is no hallway, between bedrooms and other parts of the storey; and
if there are no bedrooms on a storey, there must be at least one smoke alarm installed in the most likely path of travel to exit the dwelling.
While the amendments to the Act were introduced to provide early warning to occupants of a dwelling if there is a fire, the requirements of the Act can be enforced with breaches of the Act carrying maximum fines of 5 penalty units (currently $667.25).
Other than the imposition of fines, what are the implications for non-compliance with the smoke alarm requirements by the upcoming 1 January 2022 deadline?
In accordance with s 185 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act), the lessor must, at the start of the tenancy and while the tenancy continues, ensure that any law dealing with the health or safety of persons using or entering the property is complied with.
The smoke alarm requirements of the Act clearly deal with the health or safety of persons using or entering a property. Accordingly, if a lessor fails to comply with the smoke alarm requirements by the upcoming 1 January 2022 deadline, it will open up the lessor to potential action from the tenant for breach of the tenancy agreement.
If this breach is not remedied, the tenant can give the lessor a notice of intention to leave and subsequently end the tenancy agreement by handing over vacant possession on or after the handover day.
Alternatively, the tenant can apply to the Queensland Civil and Administrative Tribunal (the Tribunal) under s 191 of the RTRA Act and seek an order requiring the lessor to remedy the failure to comply with s 185 and ensure that the smoke alarm requirements of the Act are complied with.
The tenant can also apply to the Tribunal under s 419 of the RTRA Act seeking one or more of the following orders:
an order requiring an action in performance of the agreement;
an order that the lessor perform the work, or take the steps, stated in the order to remedy a breach of the agreement;
an order for compensation;
an order requiring payment of all or part of the rent under the agreement to the Tribunal until –
the whole or part of the agreement has been performed; or
an application for compensation has been decided;
an order requiring payment (from rent paid to the Tribunal) towards –
the cost of remedying a breach of the agreement; or
an amount for compensation.
Accordingly, if a lessor fails to comply with the smoke alarm requirements by the upcoming 1 January 2022 deadline, they may end up being ordered by the Tribunal to comply with the requirements.
Further, in the event of a fire in a property where the lessor has failed to comply with the smoke alarm requirements by 1 January 2022, the lessor may also be faced with insurance related issues for any property damage claims.
While it is the owner of a domestic dwelling that is required to comply with the smoke alarm provisions of the Act, s 104RJ of the Act provides that a requirement imposed on an owner may be complied with for the owner by the owner’s agent.
Accordingly, lessor clients may look to shift the smoke alarm compliance obligations onto their property managers. Further, lessor clients that miss the 1 January 2022 may allege that their property manager did not advise them that they needed to comply with the Act.
In the circumstances, instructions should be obtained from clients to engage appropriate professionals to take the necessary steps to comply with the smoke alarm requirements by the 1 January 2022 deadline.
Transition to the new legislation has been gradual to provide property owners with sufficient time to comply with their obligations.
However, with only eight months left until the 1 January 2022 deadline, agencies should be undertaking a review of the properties they manage, if they have not done so already, to determine which properties comply with the requirements commencing on 1 January 2022, and which properties need to have the smoke alarms upgraded in order to achieve compliance.