In Hot Water: Landlords and Legionella

At BHW our specialist property litigators and experienced commercial property solicitors can advise you in order to achieve the very best outcome, whether you are a landlord or tenant. This particular article focusses on what commercial and residential landlords might need to do to comply with the Approved Code of Practice on Legionnaires Disease issued in 2013 by the Health and Safety Executive, “Legionnaires’ disease. The control of legionella bacteria in water systems L8” (“ACOP L8”).

The Risk

Legionnaires’ Disease is the most serious form of disease caused by the bacterium legionella and manifests as a severe type of pneumonia, which although treatable, can be deadly. The related bacteria are quite common in the natural environment such as reservoirs and lakes, but usually in insignificant numbers. Where conditions are more favourable however, such as in purpose-built water systems where the temperature is maintained and the water is perhaps slightly stagnant, they can multiply in greater numbers, posing a risk to health.  Hospitable environments for these bacteria include whirlpool spas, swimming pools, showers, recirculating hot and cold water systems, cooling towers, and most frequently, air conditioning systems, particularly where the water temperature is between 32°C to 42°C.

The Law

Although Legionnaires’ disease has been in the news from time to time, the applicable law has not significantly changed since the Health and Safety at Work Act 1974 and the Control of Substances Hazardous to Health Regulations (COSHH) 2002. Nevertheless, guidance on how to manage hot and cold water systems was updated and clarified more recently by ACOP L8. This is particularly applicable to residential landlords, although in practice the guidance is relevant for anyone who owns or rents a property that contains purpose-built water heating or cooling systems.

Putting it into Practice: Assessing the Risk

For residential landlords, being the usual person responsible for the water systems in the property, there is a duty to assess and control the risk of exposure to the legionella bacteria. This means carrying out or commissioning a risk assessment. This duty may be delegated to managing agents, but in the absence of a specific agreement, the duty will usually fall upon the landlord.

Can commercial landlords delegate this duty to tenants who have a full repairing and insuring lease?  This depends on whether the whole building is demised including, for example, the relevant air conditioning equipment, in which case the tenant would usually be responsible for complying with statutes. However, where the landlord retains control of the relevant common parts where the air conditioning units are placed, the responsibility for risk assessment lies with the landlord. A well drafted lease would allow the costs to be recharged to the tenant via the service charge.

The risk assessment needs to be carried out by a ‘competent person’ although there is currently no official approved register of who would be considered ‘competent’ for these purposes. A quick internet search will reveal a number of self-proclaimed specialists who have seized this as a business opportunity and offer assessment services. However it would seem that a reasonably knowledgeable landlord or tenant would be able to carry out a basic risk assessment themselves. The type of control measures required will depend on the nature of the water system, but this might be as straightforward as ensuring that the hot water supply is above 55°C, which is too hot for the bacteria to multiply. Any control measures implemented should be checked from time to time to ensure they are still effectively managing the risk. Some advisors therefore recommend that a legionella risk assessment should be carried out every two years. In any event, written records should be kept to demonstrate that the required actions have been taken.

Statutory Compliance

Normal commercial leases will oblige the tenant to comply with acts of Parliament and other regulations. Landlords and tenants should therefore be aware that particularly in longer leases, as this is an ongoing requirement, legislative reform will make compliance with this covenant an evolving tenant liability. This article has focused on legionella, but recent changes in legislation have also concerned fire safety, ozone, asbestos and certification of gas and electrical installations. Some of these involve occupier-related obligations and tenants cannot be required to provide risk assessments or evidence of compliance for a property which they no longer occupy. Legionnaires’ disease is a risk which, if managed properly, should not cause anxiety for either landlords or tenants, but if you are in any doubt, please seek legal advice by contacting one of our experts at BHW Solicitors.