Smoke alarm compliance : the deadline approaches

In April 2021, we reminded readers of the incoming amendments to the Fire and Emergency Services Act 1990 (Act), due to commence from 1 January 2022. This included additional obligations on property owners with regards to the installation and maintenance of smoke alarms for any domestic dwelling being sold, or where a new tenancy starts or an existing tenancy is renewed.

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 less than 10 years old; and

• operate when tested; and

• be interconnected with every other smoke alarm in the dwelling so each activates at the same time; and

Smoke alarms must be installed on each storey:

• in each bedroom; and

• 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.

Smoke alarms must be either hardwired or powered by a non-removable 10-year-old battery, or a combination of both may be allowed.

Sales agents

The key question for sales agents in the lead up to the 1 January 2022 deadline is "what happens if a contract is signed before 31 December 2021, but settlement does not occur until after the 1 January 2022 deadline?".

The answer to this question is in the wording of s 104RBA(2)(a) of the Act, which sets out that the above requirements apply if, after 31 December 2021:

"(a) the owner of the residential land on which the dwelling is constructed enters into an agreement to transfer the land to another person;" (our emphasis added)

Accordingly, the additional requirements for smoke alarms outlined above only apply if a contract is entered into after 31 December 2021.

The sixteenth edition of the Contract for Houses and Residential Land currently requires the seller to give notice to the buyer where a Compliant Smoke Alarm(s)[1] is/are installed in the residence. This section of the contract also includes a warning that failure to install a Compliant Smoke Alarm is an offence under the Act.

In the circumstances, for a contract entered from 1 January 2022 onwards, the seller will need to ensure that the additional requirements outlined above have been satisfied in order to give notice to the buyer that a Compliant Smoke Alarm(s) has/have been installed.

With just over two months until the 1 January 2022 deadline, sales agents are encouraged to discuss the above requirements with their clients, including all new clients, to ensure that the required notice regarding a Compliant Smoke Alarm can be given in the event that a contract is entered into from 1 January 2022 onwards.

Property Managers

The wording in the Act is slightly different for rental properties, where s 104RBA(2)(b) provides that the above requirements apply if, after 31 December 2021:

"(b) a new tenancy for the dwelling starts or an existing tenancy for the dwelling is renewed." (our emphasis added)

Accordingly, the relevant date for a new tenancy or renewal of an existing tenancy is not the date that the Form 18a General Tenancy Agreement (GTA) is signed, but the date the tenancy starts as set out in Item 6.2 of the GTA.

With the 1 January 2022 deadline approaching, property managers should ensure that their current Lessor clients and all new clients are well aware of the additional obligations under the Act. Property managers should remind their Lessor clients of the additional obligations with sufficient time prior to the start of a new tenancy or renewal of a tenancy, in order for any necessary changes to be made to the smoke alarms at the property.

Property managers will be aware that pursuant to s 185 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), a 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 the property. Accordingly, if a Lessor fails to comply with the smoke alarm requirements by 1 January 2022, it will open up the Lessor to potential action from the tenant for breach of the tenancy agreement.

What is the risk for property agents?

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 the owner may be complied with for the owner, by the owner's agent.

Accordingly, property owners may look to shift the smoke alarm compliance obligations onto their property managers, or sales agent. Further, property owners may allege that their property agent did not advise them that they needed to comply with the Act.

In the circumstances, property agents should ensure that their clients are informed, in writing, about their obligation to comply with the Act, prior to entering into any contract of sale, or any tenancy agreement/renewal.

By now agencies should be well aware of which properties on their rent roll comply with the requirements commencing on 1 January 2022, and which properties need to have their smoke alarms upgraded in order to achieve compliance.

Similarly, sales agents should consider whether any properties they currently have listed need to have their smoke alarms upgraded in order to achieve compliance. Sales agents should also discuss the additional smoke alarm requirements with all new clients to ensure that the required notice regarding a Compliant Smoke Alarm can be given in the event that a contract is entered into from 1 January 2022 onwards.

Reference:

[1] A term defined in the Contract for Houses and Residential Land.

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