Health& Safety for land­lords

Kapi-Mana News - - GARDENING - ALAN KNOWSLEY LE­GAL MAT­TERS

This week Alan Knowsley takes a look at health and safety and body cor­po­rates, what they are, who runs them, and what they mean for tenants and land­lords.

Un­der the Health & Safety at Work Act a per­son con­duct­ing a busi­ness or un­der­tak­ing (PCBU) has many du­ties to keep peo­ple safe in the work­place.

A land­lord is con­duct­ing the busi­ness of rent­ing out a res­i­dence (usu­ally for a profit) so do they owe health and safety du­ties to their tenants? That will de­pend on whether the home/ flat/apart­ment is a work­place un­der the Act.

Nor­mally a res­i­dence is not a work­place for the oc­cu­pier but will be a work­place for peo­ple who are there to do work.

If the land­lord gets work done on the prop­erty e.g. a new roof then the home will be a work­place while the build­ing work is be­ing done.

The land­lord and the roof­ing com­pany will both have du­ties to the oc­cu­piers to keep them safe dur­ing the work.

Like­wise if the land­lord them­selves does some work on the prop­erty, such as re­pairs or main­te­nance, the prop­erty is then a work­place for the land­lord dur­ing that work.

In a sit­u­a­tion where work is not be­ing done on the prop­erty, but the ten­ant’s health is be­ing af­fected, such as con­tam­i­na­tion from ‘‘P’’ in the home, the sit­u­a­tion is un­likely to be cov­ered by the Health & Safety at Work Act, but may fall un­der other acts like the Build­ing Act, Crimes Act if the land­lord knows or should know but doesn’t do any­thing about it.

What about a body cor­po­rate? Is the body cor­po­rate li­able for health and safety at work?

The body cor­po­rate is made up of com­mit­tee mem­bers who live in the premises or own one or more units.

The body cor­po­rate is a ‘‘le­gal’’ per­son con­duct­ing a busi­ness or un­der­tak­ing (even though it is not for a profit) so will be a PCBU.

An owner who is rent­ing out their apart­ment will be a PCBU and will not be ex­empt un­der the ‘‘oc­cu­pier’’ ex­emp­tion be­cause they are not oc­cu­py­ing the apart­ment as a res­i­dence.

Like­wise the body cor­po­rate is not oc­cu­py­ing a premises as a res­i­dence.

The body cor­po­rate is re­spon­si­ble for the com­mon ar­eas and is not it­self a res­i­den­tial oc­cu­pier so is not ex­empt un­der the ‘‘oc­cu­pier’’ ex­emp­tion.

The body cor­po­rate can­not in­sure against fines but can in­sure against the costs of de­fend­ing a pros­e­cu­tion and for any repa­ra­tion or­ders.

The fines or­dered against the body cor­po­rate will be op­er­at­ing ex­penses and will be levied against all own­ers on their unit en­ti­tle­ment share.

The of­fi­cers/com­mit­tee of the body cor­po­rate can also be per­son­ally li­able for their own ’’of­fi­cer’’ du­ties.

They must en­sure that the body cor­po­rate car­ries out its health and safety du­ties.

How­ever, any mem­ber of the com­mit­tee who are vol­un­teers (not paid any­thing ex­cept re­im­burse­ment of out of pocket ex­penses) will be pro­tected from pros­e­cu­tion by the’’vol­un­teer’’ ex­emp­tion.

Any com­mit­tee mem­ber who is paid a meet­ing fee or al­lowance will not be a vol­un­teer and there­fore they may be per­son­ally li­able in ad­di­tion to the body cor­po­rate.

The com­mit­tee mem­bers can­not re­cover any fine from the body cor­po­rate.

It pays to know your po­ten­tial li­a­bil­i­ties be­fore you ac­cept any po­si­tion and en­sure that the body cor­po­rate takes all prac­ti­ca­ble steps to iden­tify then elim­i­nate or min­imise all haz­ards.

Col­umn cour­tesy of RAINEY COLLINS LAWYERS phone 0800 733 484 or go to www.rain­ey­collins.co.nz.

If you have a le­gal in­quiry you would like dis­cussed in this col­umn please email Alan on aknowsley@rain­ey­collins.co.nz

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