Legionella bacteria normally live in small numbers in soil and water. However, in stagnant or warm water, the bacteria can quickly grow to larger numbers. As is well known, legionella bacteria can cause a lot of damage to human health in such cases. It is therefore important to prevent legionella. But when leasing property, who actually bears the obligation to prevent legionella, is it the tenant or the landlord? This blog explains what legionella prevention is, what the legal rules are and, of course, answers the question in the title.
What is legionella prevention?
Property owners have a responsibility to provide safe drinking water. The water utility bears the responsibility for providing safe water up to the building's main tap, but the property owner has a general duty of care for the distribution of that water within the building. This includes a duty to take preventive measures to prevent Legionella.
For buildings in which a priority institution is located, further obligations in the context of legionella prevention apply in addition to the general duty of care. Priority institutions include hospitals, saunas and hotels. Owners of a building in which a priority institution is located must draw up a risk analysis and a management plan, among other things, in addition to the general duty of care.
Measures required by law
As mentioned above, a property owner has a general legal duty of care if he supplies drinking water to tenants, for example. This duty of care for drinking water companies follows from Article 21 of the Drinking Water Act. This section also applies to property owners through Section 25 of the same Act. The property owner is responsible for supplying safe drinking water and must take care of the water pipes.
Chapter 4 of the Drinking Water Decree additionally stipulates that the owner of property in which a priority institution is located has the obligation to take measures to prevent the growth of legionella.
Under the law, the owner of a priority institution must take the following measures:
- Preparing a risk analysis;
- Preparing a legionella management plan;
- Implementing measures and controls;
- Keeping a logbook.
The risk analysis should be prepared by a company certified to do so. This analysis reveals the places in the building where the water mains are most susceptible to the growth of legionella bacteria. Then, based on the risk analysis, a certified company can draw up a management plan. The management plan contains the measures to be taken to prevent legionella, such as periodic flushing of the pipes. The measures taken must be kept in a logbook. Furthermore, the owner must have water samples taken every six months to check for the presence of legionella. If the measurements show that more legionella bacteria are present in the water than the legal maximum, the owner must report this immediately to the Environmental and Transport Inspectorate.
Failure to comply with the Drinking Water Regulations is considered an economic offence, therefore a fine can be imposed on the owner. It is also possible for the owner to be held privately liable if a user becomes infected by legionella bacteria.
Legionella prevention: agreements in the lease agreement
Under current legislation, the owner, and therefore the landlord of a building, is responsible for legionella prevention.
In principle, therefore, the legal obligation to take measures against the growth of legionella bacteria does not rest on the tenant. Of course, the tenant and the landlord can agree on "who does what" and it can be contractually stipulated that the tenant is obliged to take certain measures. Often this is also desirable from a practical point of view. For example, it can be agreed that the tenant is obliged to implement (or have implemented) measures from the management plan. Examples include carrying out flushing protocols and keeping the logbook up to date. It is also advisable to include an obligation for the tenant to inform all persons working in the building and end users about the management plan. In addition to lessee liability for failure to comply, parties can also attach a penalty for inadequate implementation of the management plan.
Furthermore, it can be included in the lease agreement that the costs for legionella prevention are passed on to the tenant through the service charges. Consider the costs incurred for the semi-annual inspections. Lease agreements also often include the stipulation that the tenant is not allowed to make any changes to the water systems in the leased property without prior written permission. This is because the landlord remains ultimately responsible for legionella prevention and can thus keep an eye on it. Finally, it is advisable to stipulate in the rental agreement that the tenant must always cooperate with inspections and checks.
Is the presence of legionella a defect?
In addition to the aforementioned legal duty of the property owner to prevent legionella, legionella can (of course) also affect the enjoyment of the leased property. If no agreements have been made between landlord and tenant regarding legionella prevention and an infection occurs, the following applies in addition to the possible liability of and penalty for the landlord.
The presence of legionella contamination qualifies as a defect within the meaning of Article 7:204 of the Civil Code, the Rotterdam District Court ruled in a judgment dated January 29, 2010. This means that legionella contamination is a circumstance as a result of which the tenant is not provided with the enjoyment that he could expect from the leased property. This defect can, for example, lead to a temporary rent reduction.
Again, it is important for the property owner to take proper measures in terms of legionella prevention.
Conclusion
The landlord bears the final responsibility for legionella prevention, but from a practical point of view it is usually agreed that the tenant is responsible for implementing (certain parts of) the management plan. To avoid misunderstandings regarding legionella prevention, it is advisable to clearly state the obligations of the tenant and landlord in the lease agreement.
