Those following the recent debate on whether a landlord can recover from a tenant the costs of essential safety measures as an outgoing under a lease in light of s 251 of the Building Act, a decision of Senior Member Riegler published today states that:
[69] It is clear that the express terms of the lease required the Tenant to arrange for an essential safety measures report and to purchase whatever fire fighting equipment was required in order to comply with such a report. In my view, s.251 of the Building Act 1993 does not necessarily prohibit a landlord from placing such an obligation on a tenant, save and except that the Landlord must reimburse the Tenant for the costs associated therewith, failing which the Tenant is entitled to set-off those costs against rent due and payable under the lease. The relevant regulation does not state that the owner of the land must be the entity that carries out the relevant work but merely states that the owner must ensure that the essential safety measures are carried out. The regulation does not prohibit a landlord from placing a contractual obligation on a tenant to undertake that work, albeit that the landlord ultimately remains legislatively responsible to ensure that the work is carried out.
I will post a summary of the decision as soon as I can.
Thank you to Derry Devine for alerting me to this paragraph.
The decision is not on AustLii yet.
