Watts Service Focus

Tenants’ duties and the Ozone Regulations

In most commercial lease agreements there will almost certainly be a clause binding the tenant to comply with statute. Where dilapidations are concerned, care must be taken in the interpretation of the statutory compliance clauses as these can extend tenants’ obligations to include improvement of the premises and are often misconstrued.

For example, it is clearly unreasonable to expect a tenant to carry out works that are necessary to ensure compliance with the Building Regulations when these are not, in themselves, retrospective – at least not yet!

Many statutory obligations cease once a property has been vacated. There is for instance no obligation on an outgoing tenant to provide a fire risk assessment on a building that they will no longer occupy. Similarly, there is no point in a landlord asking a tenant to show compliance with disability discrimination issues once he has vacated. These are occupier-related obligations, specific to the manner in which the tenant uses a property, and cease once the tenant has vacated the premises.

One compliance-related issue that is coming up more frequently, and will continue to do so for some years to come, is the question of R22. The Ozone Regulations came into force in 2000 to eliminate the use of HCFCs (or hydrochloroflourocarbons). These are ozone depleting substances which have many uses including that of a refrigerant in air conditioning and other cooling systems.

One HCFC, known as R22, was very commonly used in the past but since 2000 has been banned for use in new systems. Since 2010 the use of HCFCs – including R22 – as virgin top-up fluid on existing systems has also been banned and from 2015 their use as a recycled top-up fluid will be discontinued. R422d is traded as a drop in replacement, but its suitability and its effectiveness varies significantly. Of course, spare parts for those older systems will cease to be available by 2015 anyway, and so replacement may be the only option.

Tenants should be aware that increasing numbers of landlords are now including items in schedules of dilapidation which ask for the replacement of cooling systems, in compliance with the Ozone Regulations. If tenants find that such an item has been included at lease end, they should take professional advice. The only requirement at this point in time is that virgin fluid cannot be used to top-up cooling systems and so by implication, if a system is capable of being topped up with recycled R22 or indeed replaced with an alternative type of refrigerant then that is all that can be asked for.

Come 2015 the picture will change but, until then, asking for complete replacement of entire cooling systems cannot necessarily be justified.

For more information, contact Ian Laurie, Director at Watts Group on 0131 226 9250.

Watts Pocket Handbook

The Watts Bulletin is the technical companion to the Watts Pocket Handbook, the essential guide to property and construction, as used by professionals since 1983.

Watts Bulletin editor: Trevor Rushton.

To subscribe to Watts Pocket Handbook Online, visit wattshandbook.co.uk.