Duties of landlords and tenants under the new health and safety legislation

The recent introduction of the new Health and Safety at Work Act 2015 (HSWA) has made obligations of landlords and tenants under the legislation a concern for a number of clients.

Commercial Landlords and Tenants need to be aware of the following:

1. They will be classed as a PCBU (Person Conducting Business or Undertaking) as such the HSWA applies.
2. The Landlord will be responsible for amongst other things:
   a.  health and safety of its workers.
   b.  health and safety of workers the commercial Landlord instructs or directs on the site.
   c.  health and safety of others such as tenants and visitors to the building.
3. The landlords obligations are to ensure so far as reasonably practicable that the building does not pose a risk to the health and safety of the persons referred to above.
4. What is considered reasonably practicable depends to a large extent upon the circumstances but essentially will relate to the likelihood of the particular hazard or risk occurring and the degree of harm that may result.
5. From a Tenants perspective it is clear that a tenant carrying on a commercial activity in a building would also be a PCBU.
6. Most Commercial Leases will attempt to specify what responsibilities either the landlord or the tenant have but in practice these clauses are not comprehensive and it is clear that possibly both tenant and landlord will have similar or over lapping obligations under the HSWA.
7. While the Lease may direct responsibilities in terms of the components of the building as between tenant and landlord from a statutory point of view it is not possible to contract out of the obligations under the HSWA and so both landlord and tenant need to assess their particular potential responsibilities independently.  Certainly co-operation and communication between landlord and tenant should be undertaken and both parties should be checking that the respective obligations of the other party are being complied with.
8. A quick note on residential owners. Essentially residential owner occupiers are not PCBU’s and are therefore not subject to the HSWA.  However landlords who are residential property investors would be deemed to be PCBU’s and will be subject to the HSWA regime.

We are able to advise on all aspects of commercial leasing including the implications of Health and Safety Legislation for landlords and tenants.

If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry and Co. who normally advises you, or alternatively contact:

Paul Farry
pfarry@farry.co.nz
09 379 0055 or 03 477 8870

The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such.  Professional advice should be sought before applying any of the information to particular circumstances.  While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain.