The law is changing regarding the use of recycled hydrochlorofluorocarbons (HCFCs) for the service or maintenance of existing refrigeration, air conditioning and heat pump equipment. From the beginning of next year, the use of all HCFCs for service and maintenance will be banned.
R22 (chlorodifluoromethane, also know as Freon 22 gas or HCFC-22) is a refrigerant gas, widely found in air-conditioning units and refrigerators. The emission of R22 into the atmosphere depletes the ozone layer and is regulated by the Montreal Protocol. The Protocol has prohibited the use of new HCFCs, including R22, in the maintenance and servicing of refrigeration, air conditioning and heat pump equipment since 2010.
It is currently legal to use recycled HCFCs for the service or maintenance of existing refrigeration, air conditioning and heat pump equipment, which will be used by those in the leisure trade. But from 1 January 2015 the use of all HCFCs, new or recycled, will be banned.
Hoteliers and caterers who continue to use recycled HCFCs after this date will be committing an offence and could be fined.
Those who are using recycled HCFCs will need to decide whether their equipment should be replaced or converted so that it uses a permitted gas.
Specialist advice will need to be taken to understand the practical and cost implications of each of these options.
One of the main issues with the law changing is that leisure operators, such as caterers, are often leasing space. A landlord who owns a building, for example, with an air-conditioning system that uses recycled HCFCs, will need to replace or convert that system. They will most likely want to recover any costs from their tenants via the service charge. However, this will depend on how the service charge provisions have been drafted. For example:
•Can the tenant be charged for the costs of replacing or improving equipment as well as repairing it?
•Can the landlord charge the tenant in relation to the cost of complying with statute?
•Is there a general sweeper clause enabling the landlord to recover any other reasonable costs incurred?
If a tenant has a lease of a whole building, then it is likely to contain a clause requiring it to comply with all legal obligations and this will include not using recycled HCFCs from 1 January 2015. The lease will also require the tenant to obtain the landlord's consent to any alterations and pay for the cost of these.
If a leisure operator is entering into a new lease of premises with equipment that uses recycled HCFCs, they will need to consider whether the landlord or the tenant is responsible for replacing or converting the system.
If the tenant is only taking a short lease, it would seem more equitable for the landlord to be responsible for making the changes. However, cost is not the only factor - the replacement or conversion of, for example, an air-conditioning system, could be disruptive to the tenant's business.
As tenants, hoteliers and caterers should ensure that, before entering into a new lease, they find out if changes will be needed to existing systems so that they do not receive an unwelcome new year's surprise.
Alexandra Holsgrove Jones is a professional support lawyer at TLT Solicitors Alexandra.HolsgroveJones@TLTsolicitors.com