Is the body corporate responsible for the new smoke alarm obligations?

It has been well documented that new smoke alarm requirements are being phased in – with the timing of the changes determined by whether a lot is occupied by the owner or rented out to a tenant.

The Queensland Fire and Emergency Services has prepared a good summary of the changes:

https://www.qfes.qld.gov.au/sites/default/files/2021-04/New-Smoke-Alarm-Legislation.pdf

Relevantly, from 1 January 2022 all lots that are sold or leased (new or renewed) must have new smoke alarms installed that meet the higher standard, including that they are interconnected with all smoke alarms in the lot.

Unfortunately, there are many investor owners:

1. who are not aware of the changes;
2. have not complied with the obligation to upgrade their smoke alarms; or
3. expect the body corporate to carry out this work at the body corporate’s cost.

Who has the obligation to install the new smoke alarm?

A smoke alarm is considered utility infrastructure under the Body Corporate and Community Management Act 1997 (Qld) (BCCMA).

Generally, the lot owner is responsible for maintaining their lot whereas the body corporate is responsible for maintaining common property.

Section 20 of the BCCMA provides that all utility infrastructure is common property unless it is:

1. solely related to supplying utility services to a lot; and
2. within the boundaries of the lot; and
3. located other than within a boundary structure of the lot.

Accordingly, responsibility for smoke alarms comes down to whether the smoke alarm services other lots in the scheme.

Several adjudicators have considered this issue and confirmed that a smoke alarm is capable of servicing more than one lot in a scheme if it is connected to a central alarm panel. Only then does the body corporate become responsible for smoke alarms.

If the smoke alarm does not communicate to a central alarm panel or to alarms in other lots or the common property, the lot owner remains responsible for any maintenance and replacement works.

However, even where the lot owner is responsible for smoke alarms, our view is that the body corporate ought to take steps to ensure that lot owners are complying with their obligations to install and maintain appropriate smoke alarms.

What can the body corporate do?

The current obligations to install new smoke alarms only relates to tenanted or recently sold lots. Helpfully, the BCCMA requires owners to provide the body corporate with details of any lot sales and tenancies (greater than 6 months). Some by-laws then reduce this 6 month requirement.

Usually, compliance can be achieved by communicating the requirements to owners and asking them to carry out the necessary works.

The body corporate (and owners) can also take advantage of a mechanism in the BCCMA whereby owners opt in to an arrangement where the body corporate engages a service contractor to provide services to several lots in order to achieve some level of economies of scale on the basis that any costs incurred by the body corporate are reimbursed by the lot owners that have opted in.

If the body corporate believes that an owner is not meeting their fire safety obligations, it has powers under the BCCM to:

1. access lots to see if appropriate work has been carried out;
2. carry out work on behalf of the owners, at the owner’s cost; and
3. obtain adjudicator’s orders requiring the lot owner to carry out the required works.

Mahoneys were recently able to obtain orders requiring a lot owner to carry our works to their lot for fire safety purposes in Kirribilli Heights [2021] QBCCMCmr 512.

Written by Todd Garsden

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