Can UK real estate handle the heat?

Keeping cool

At a building design level, much can be done to ensure occupiers and residents are comfortable in the heat (beyond installing air conditioning, which uses energy and emits more carbon dioxide into the atmosphere), such as:

• creating high-volume spaces that allow hot air to rise above the occupied zone and promote cooling air movement where high-level openings are employed;
• fitting windows with shutters or blinds to create internal shading;
• building with thick walls to create insulation, which means it takes longer for heat to get in and out; and
• painting exterior walls white, since white does not absorb any heat radiation from the sun, keeping indoors cool even if the outside temperature is high.

Approximately 82% of England’s population live in urban areas, which is unfortunate in a heatwave – urban areas are typically hotter than their rural counterparts. The greater number of people, buildings, and the machinery inside a city all create heat. Buildings and other structures store heat during the day then emit some of that heat at night. Cities might also have less reflectiveness, which would let them soak up more of the sun’s heat, and the greater number of plants in rural areas means increased evaporation and absorption of energy.

In cities, glass buildings may have the benefit of letting in natural light, but also bring heat into an often sealed space, where there is no way for warm air to escape naturally. Concerns have been raised that office blocks turned into residential properties via permitted development rights frequently overheat and are rarely well designed to withstand a heatwave – with their large windows and poor ventilation trapping warmth inside, along with the occupiers.

The law

As a lawyer, it is interesting when external events impact your work. In April 2020, Covid-19 meant that, for a property lawyer, normal work made way for landlord and tenant disputes over rent, lease re-gears and increased activity in sectors less affected by lockdowns, such as industrial and warehousing, while employment lawyers started advising on furlough.

This July, the frequently encountered scenario for property lawyers was answering whether a landlord or tenant is responsible for a malfunctioning air conditioning system, while for employment lawyers it was what should employers do during extreme heatwaves (see below).

Whether air conditioning malfunction is the landlord’s or tenant’s responsibility depends simply on the lease. Generally, multi-occupied office buildings tend to have one central air conditioning system operated by the landlord. For a standalone unit (eg a restaurant) the tenant is likely to be the one responsible for cooling systems.

There are no fixed rules, and it will always fall on the individual terms of the lease.

The problems usually arise when, in the rush to complete a deal, responsibility for air conditioning is not given sufficient thought by the parties, so you are left with a lease that does not reflect reality or the parties’ intentions. Other irritations that crop up because of the hot weather – complaints about bins, the smell of waste and insect infestations – can also become more serious disputes when temperatures are extreme.

Look internationally and think ahead

Other countries have been adapting and innovating to deal with hot climate conditions for hundreds of years – the famous white buildings of islands like Santorini are not just for show. And it doesn’t have to be a chore. Simple changes can be impactful – earlier this year, climate scientists in Barcelona pioneered a project to paint the roofs of the city’s iconic skyline white on the basis that it could reduce temperatures by nearly five degrees Celcius during heatwaves.

The real estate sector has many environmental pressures to contend with – to make buildings more energy efficient, be more sustainable, reduce carbon emissions, and so on. Adding “ensure residents and occupiers of buildings can comfortably withstand a heatwave” to the list may not be good timing. Some may also question whether it is even necessary to make changes to mitigate the effects of a few hot days each year. However, the risks to health and productivity are material. Britain was not alone in struggling to work in the heat on 19 July – research from 2014 in the US has suggested a 24% decrease in productivity from heatwaves.

Some projections state that by the 2070s, temperatures above 30°C for two or more days may occur as frequently as four times per year.

In the future, a big property differentiator may become “how hot does it get?”, and we could see some major changes in the way we use spaces and the design of buildings in response to the new climate.

Making changes and adapting UK real estate for heatwaves will take time, so their impact on dwellings and workplaces needs greater attention now. We are working with clients who are taking positive steps to adapt existing properties to make them weatherproof for the future, as well as building for an environment with a broader temperature spectrum (it is worth remembering that extreme cold is the other side of the heatwave coin).

We are also helping clients to manage their legal risk in the ways they build and develop their businesses sustainably.

Tristan Wark is a legal director in the real estate team at law firm Memery Crystal.

Employment law and heatwaves

There is no legal maximum workplace temperature that employers must not exceed, and there is no government guidance which suggests what it should be (although the government suggests a minimum workplace temperature of 16°C, or 13°C for those doing physical work), writes Mark Rose.

Nevertheless, employer obligations to take reasonable care for the health and safety of employees, which encompass ensuring that a workplace is not excessively hot, include:

• The Workplace (Health, Safety and Welfare) Regulations 1992, which place a legal obligation on employers to provide a “reasonable” temperature in indoor workplaces;
• The Management of Health and Safety at Work Regulations 1999, which require employers to make a suitable assessment of the risks to the health and safety of their employees, and act where necessary and where reasonably practicable; and
• Terms that are implied into all contracts of employment, that employees should be provided with a working environment which is suitable to enable them to work, and that the employer must act reasonably in dealing with matters of employee safety.

Bear in mind that certain employees, such as those who are pregnant, suffer from certain illnesses or disabilities, or take certain medication, may be particularly susceptible to working in an excessively hot workplace. Working practices should be reviewed in the light of the heatwave and, where necessary, changed to control risks.

Employers who want to make working in the warm weather more comfortable could provide fans or air conditioning, use blinds to reduce the effect of direct sunlight, place insulating materials around hot pipes, provide cool water or ice lollies, and relax dress code requirements if appropriate.

At times of hot weather and uncomfortable working conditions, employers will need to be considerate to employees – after all, if staff are too hot, they will not be at their most productive.

Mark Rose is a senior associate in the employment team at law firm Memery Crystal.

Disclaimer: We at Memery Crystal (and our parent company RBG Holdings plc) support and encourage free/independent thinking in relation to issues which are sometimes considered to be controversial subject matters. However, the views and opinions of the authors of articles published on our website(s) do not necessarily reflect the opinions, views, practices and policies of either Memery Crystal or RBG Holdings plc.

| Can UK real estate handle the heat? (egi.co.uk)

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