Health and safety with cross lease title

[Denis newman]

Properties in a free hold unit title e.g apartment block or block of units need to have a hazzard report done and in place to comply with the new health and safety act. These are part of the body corp procedures now.
What about cross lease titles? they appear to fall outside the act.

[Monsterbishi]

Properties in a free hold unit title e.g apartment block or block of units need to have a hazzard report done and in place to comply with the new health and safety act. These are part of the body corp procedures now.
What about cross lease titles? they appear to fall outside the act.

Wouldn't it only apply if there were PCBU's involved?

[Wayne]

What about cross lease titles? they appear to fall outside the act.

Excellent - and may they forever be outside the act.

[Denis newman]

Health and safety with cross lease titles

Properties in a free hold unit title e.g apartment block or block of units need to have a hazzard report done and in place to comply with the new health and safety act. These are part of the body corp procedures now.
What about cross lease titles? they appear to fall outside the act.

[ripeka]

The type of land/property is not relevant. The H&S Act says that health and safety duties are owed by any PCBU (person conducting a business or undertaking). In other words, is the owner of the property, or manager of the property a PCBU?

-Body corporate managing a series of units? = PCBU and owes a duty of care to tenants, themselves, contractors working on the property i.e. everyone
-Cross lease property owned by a landlord and rented out? Landlord is a PCBU but Landlord only has duties when work is actually being undertaken on the property eg when engaging a contractor. Interestingly, there is an exemption to being classed as a PCBU to occupiers of houses including tenants. In other words, whoever lives in the house can't be held to the same duty of care.

-Property management company managing all types of property including anything on a cross lease title? = PCBU and owes duty of care to everyone.

As a PCBU, a landlord (or property manager/body corporate) must therefore do everything reasonably practicable to protect any worker (contractor/tradie etc) from any risk to their health and safety. A hazard plan is not mandated by the Act itself but is a good place to start in terms of showing that you are serious about H&S. Other things are likely to be required - anything "reasonably practicable" actually. Such fun.

[Denis newman]

Thanks Ripeka.
Blocks of units on free hold unit title must have a bodycorp involved which is good for getting the property as a whole on the same page with issues such as the H&S act... cross leases dont need a BC... so you have a block that has both owner occupier and tenanted units which means the person in charge of the tenanted properties is a PCBU and the owner occupiers are not.
Example block 6 units... 5 owners are owner occupier and 1 is tenanted does that mean the 1 property manager / landlord is now the only PCBU for the whole block?
what happens if a worker is working on the owner occupier unit falls off the ladder does that mean the only property manager / landlord is now responsible for the claim?.
Does that mean everyone that works on the building must see the only PM/ LL before they can work on any part of the property?
What say there is a part of the common area property that is identified by the proactive PM/LL as a hazzard... the issue is raised with the other owners to which they ignore... does that mean the PM/LL bites the bullet and pays for everyones repairs to cover his arse... Arbitration PPpfftt.
Is it me or is this sounding ridiculouse?

[Lanthanide]

Which part of the act says freehold units need a hazard report?

[Anthonyacat]

Technically, cross-lease titles are leasehold.

Not saying the original question has any merit. Just letting you know.

[Lanthanide]

I found after posting my question here, that this thread was actually double-posted in two forums, and the other thread is here, with useful discussion: https://www.propertytalk.com/forum/s...ss-lease-title

Moderator: this thread should be locked or deleted.

[ripeka]

If a block of 6 units with cross lease, no BC, and everyone owns their unit apart from the 1 unit which is tenanted? - imo, the landlord and property manager are the PCBU for their unit only. They can't possibly be a PCBU for the other 5 units as the landlord/property manager can't be a "person conducting a business or undertaking" in respect of those 5 units. There is no business relationship; they have no power over, or responsibility for those other 5 units.

Regarding a hazard in the common area, how would any problem with the common area be resolved? The same principles apply. Remember also the obligation is to do something that is "reasonably practicable".

Let's imagine a situation where a your block of 6 flats is on a hill, and a 10 metre retaining wall in the driveway common area has been identified as being at risk of imminent collapse eg following a large earthquake; obviously a dangerous situation. Assume the owners don't care about their own safety, and continue to use the driveway, and don't have any money to fix their share of the wall etc (yes, this kind of situation happened in Christchurch, lol). The owners are free to take that risk with their lives if they so wish. However, I would imagine that as far as the landlord/property manager is concerned, they would need to cease renting the house until it was fixed as they are a PCBU and would be held liable if the retaining wall collapsed and the tenant was buried. Their duty of care is higher because they are making money off the tenant, and so have a duty to ensure their safety. Total bad luck for the landlord if there is no money from the other owners to fix the retaining wall, and yes, he would need to probably get the legal beagles involved to try and get action from the owners to get the wall fixed.

It's all a matter of weighing up what the risk is, how likely it is to happen, what's the likely consequence of level of harm, and how can it be mitigated. If you are the landlord, it is important to realise that you have responsibilities in the situation that can't just be ignored. If the hazard is in the common area and can be fixed by taking reasonably practicable steps, I would expect the landlord/PM to follow the usual process for getting owner buy-in to sorting out a problem in a common area, and then if they were not co-operative, then the landlord/PM should deal with the hazard and then try and recover from the owners.

[Halfway To Paradise]

I was told that it is the owners responsibility if they have tradesmen on site to make sure they follow safe practice. For example making sure someone working on the roof has a harness. I think I will be away on holiday when I have work done.

[Lanthanide]

No, it's your responsibility as an owner to ensure the people doing the work are capable of doing it safely - you don't have to check that they actually have a harness on when they do the work on the roof. So you should ask your builders if they have a H&S policy in place, and ask to see that policy. You don't have to be an expert and vet their policy and procedures in detail, but any reputable builder needs to have a health and safety policy. You can check that they are registered, and could ask if they have a "site safe passport". If you've done these things and you're satisfied that the builder has appropriate H&S policies in place (ie more than just a 1 page vague statement about how they "always work safely"), then you have discharged your duties. If an accident were then to occur on-site, you should be cleared of responsibility by any subsequent Worksafe investigation. If you happened to visit your house while the work was being carried out and saw something that looked unsafe (or your tenants informed you of something unsafe), then you'd have a responsibility to intervene and discuss it with the builder.

If you decided to shirk your responsibilities under the law, hired a builder and didn't bother to check any of their health and safety policies - and in fact the builder turned out to be a fly-by-night operation without any proper policies or certification etc, then deliberately went overseas to try and avoid having any responsibility, and an accident happened, then Worksafe could hold you liable in the subsequent investigation.

In practice Worksafe are only likely to go after proper landlording businesses, eg property management companies, or if your day job is being a landlord and it forms your primary income, so long as you aren't grossly negligent in hiring tradespeople. So don't get your neighbor down the street to do work they aren't qualified for, for example.

[Davo36]

No, it's your responsibility as an owner to ensure the people doing the work are capable of doing it safely - you don't have to check that they actually have a harness on when they do the work on the roof. So you should ask your builders if they have a H&S policy in place, and ask to see that policy. You don't have to be an expert and vet their policy and procedures in detail, but any reputable builder needs to have a health and safety policy. You can check that they are registered, and could ask if they have a "site safe passport". If you've done these things and you're satisfied that the builder has appropriate H&S policies in place (ie more than just a 1 page vague statement about how they "always work safely"), then you have discharged your duties. If an accident were then to occur on-site, you should be cleared of responsibility by any subsequent Worksafe investigation. If you happened to visit your house while the work was being carried out and saw something that looked unsafe (or your tenants informed you of something unsafe), then you'd have a responsibility to intervene and discuss it with the builder.

If you decided to shirk your responsibilities under the law, hired a builder and didn't bother to check any of their health and safety policies - and in fact the builder turned out to be a fly-by-night operation without any proper policies or certification etc, then deliberately went overseas to try and avoid having any responsibility, and an accident happened, then Worksafe could hold you liable in the subsequent investigation.

In practice Worksafe are only likely to go after proper landlording businesses, eg property management companies, or if your day job is being a landlord and it forms your primary income, so long as you aren't grossly negligent in hiring tradespeople. So don't get your neighbor down the street to do work they aren't qualified for, for example.

Not only do we have to do this crap, we have people championing it, like it's some sort of progress or something.

I see it as devolution for sure.

[PC]

So I hire an expert to do a job and I have to be an expert on what is safe and healthy for their work??
Guess I'll also have to hire a H&S expert and paper work filler inner to oversee the contractor.
Who will oversee the H&S contractor?
Oh dear - those rents are going up some more.

[Lanthanide]

So I hire an expert to do a job and I have to be an expert on what is safe and healthy for their work??

No, that's not what I said.

I said you have to check that they have a health and safety policy in place and that it looks reasonable. So a coffee-soaked napkin that says "we are safe as bro!" would not be sufficient. Similarly, a contractor that said "I don't have a health and safety policy because I don't believe in it" should not be hired to do work. Similarly a neighbor down the road who can't satisfy you that they have a health and safety policy in place should not be hired.

You can of course hire any of these people if you want. But you're taking a risk that if they injure themselves, Worksafe could prosecute you for failing to discharge your duties under the Health and Safety At Work Act 2015. You're allowed to take whatever risks you want in your life, the government isn't "forcing" you to do anything. But there are consequences to your actions. Much like if you knowingly hired a dodgy accountant to do your books, you could also be liable for any crimes they committed under your employ.