What Are Academies' Obligations as an Occupier of Property?
You may have read with interest recent reports concerning the presence of asbestos in schools and the management obligations of academies in relation to asbestos.
The reports also serve as a useful reminder to consider other obligations academies have in relation to their sites.
Main Obligations
The transfer of responsibility for managing the school site usually takes place on conversion to academy status. Some key considerations to be aware of include:-
- Where a school is a former community school, the academy will have a lease from the local authority. The terms of that lease would usually reflect the DfE Model Lease for academies, which transfers responsibility for the school site to the academy. The repairing obligation in the lease requires the academy to keep the site clean and tidy, and make good any damage caused to it. It also requires the academy to make good any deterioration to the condition of the site. This obligation is limited as it does not require the site to be put in any better condition than it was at the date of the lease.
- There are also a number of statutory obligations which an academy must comply with as the occupier of the site more generally. These obligations include the management of asbestos, fire safety, gas safety, legionella and other issues relating to their occupation of the site. These obligations apply whether or not the academy hold the freehold or have a lease.
What Should Academies Do?
These obligations are enforceable against an academy trust when the lease is initially completed or freehold title to the site transferred to it, initially on conversion. The obligations will also pass to an incoming academy trust when an existing lease is assigned or freehold subsequently transferred (for example on a re-brokerage).
It is therefore important for academies to carry out sufficient property due diligence to establish the risks of taking on a site before committing to do so.
A thorough due diligence exercise will help to identify any repair issues (for example any repair issue which has occurred since the date of the lease but which has not been remedied and likely future issues) and any statutory compliance issues (for example concerning the management of asbestos or fire/gas safety) as well as other pertinent information on the site.
This information can be then be used to negotiate a solution which can then be included in the transaction documents, to help minimise exposure to risk and cost liability.
How We Can Help
We have developed specific tools (such as property specific questionnaires) to assist in legal due diligence on property matters, and have significant experience of negotiating solutions to particular issues.