Real Estate Investor Magazine South Africa June 2015 | Page 45

LEGAL

Is Your Intricacies OfFire Proof?
Lease A Development Lease
The
BY BERNADETTE MENEZES

P

arties entering into negotiations based on a
turnkey development for business premises must
be aware of the following issue relating to fire
protection compliance.
The terms and conditions governing these provisions
must be carefully constructed prior to the conclusion
of the development lease agreement to avoid disputes
during the construction phase. In the event that the
term relating to the fire protection compliance is not
adequately negotiated it can be costly for both parties,
and can lead to disputes and unnecessary delays.
There are certificates, which the local authority
will require for the issue of the occupancy certificate
confirming that the building is legally compliant and
capable of being occupied in terms of section 14 of
the National Building Regulations and Buildings
Standards (NBRA) - Act No. 13 of 1977. One such
certificate required by the local authority is the Rational
Fire Design Certificate (RFDC) in terms of section 14
(2A) of the NBRA.
It is usually agreed between the parties that the
owner or developer at their costs, including the costs
expended for the work done, must obtain the initial
certificates of compliance.
However, there are costs, which the tenant will have
to bear for the issue by the fire engineer of the RFDC.
These costs relate to the tenant installations or tenant
extras, which must be installed in accordance with the
instructions of the fire engineer. Examples of the most
common tenant installations affecting fire protection
are the sprinkler systems, fire detection and prevention
systems and server room fire suppression systems.
The cost for the work done and the work still to be
done to obtain the RFDC is, therefore not technically,
exclusively for the owner’s or developer’s account.
This can raise two points of dispute. One relates to
the amount of the costs and the liability thereof.
The second, for the extent of work needed to ensure
compliance with the legislative requirements for the
issue of a RFDC.
The amount of work to be done relating to tenant
extras can prove to be extensive and extremely costly.

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Both parties must ensure that the costs regarding the
work and the extent, to which it must be done for the
issue of the RFDC, are negotiated and agreed upon
fairly and equitably. The tenant must be aware when
entering into negotiations of the work necessary in
respect of their tenant extras for the issue of the RFDC
and both parties must understand their respective
liability in relation to the costs.
The negotiations are complicated further by
extensive and involved legislative requirements relating
to fire compliance. You only need to look at the South
African Bureau of Standards Code of Practice for the
application of the National Building Regulations of the
NBRA to have an understanding of the complexities
relating to the rational fire design.
The minimum requirements for compliance will
most certainly vary from each building. This is further
reliant on the tenant installations and the type of
business or activity being conducted by the tenant on
the premises.

“There are costs, which the
tenant will have to bear for
the issue by the fire engineer
of the RFDC.”
When it comes to the provision in the agreement
regarding the issue of a valid RFDC in accordance
with legislative requirements, it is the responsibility
of the owner or developer, the fire engineer issuing
the required certificate, the tenant and the attorney(s)
representing the parties to prescribe in the agreement
with clarity on the above factors prior to the execution
of the development lease agreement.

RESOURCES
Tshisevhe Gwina Ratshimbilani (TGR) Attorneys
JUNE 2015 SA Real Estate Investor

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