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duty to notify AHJ and others of deficient fire alarm system / leased fire alarm not wanted by new owner June 13, 2018

KEN KIRSCHENBAUM, ESQ 
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE 
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duty to notify AHJ and others of deficient fire alarm system / leased fire alarm not wanted by new owner
June 13, 2018 
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duty to notify AHJ and others of deficient fire alarm system
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Ken
               Our company has installed hundreds of fire alarms in NY and Long Island over the years. From time to time we find existing approved fire alarm systems that are now out of compliance with the fire code. These issues are two fold, first over time the building has gone through interior renovations adding or sub-dividing offices, etc. Second the code has changed such as the requirements for the addition of Carbon Monoxide detectors.
               In both cases the building owner chooses not to make the required changes or additions as they do not want to refile and bring the building up to code or they take the position that they are only the landlord and the lease they have with the tenants require them to keep and meet the code requirements.
               My question is what is, what is our responsibility here; do we need to notify the AHJ?  Do we need to put the landlord on some kind of notice and if so how. We have and use your Fire All in One contract but I don't think that is covered by your contract
Yours truly,
Another Rich and Kind Man
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Response
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               You sound kind, not so sure about rich.  But you are on the right track thinking about your responsibility to your subscriber, to the AHJ and to society in general.  You are in the life safety business, and you should keep that in mind.
               All commercial fire alarm systems in the New York metropolitan area, and in most other places, require inspection and monitoring; the fire alarm systems need to be working.  Liability to your company, and you, could be enormous for personal injury, death and property damage; damages that could be well beyond your insurance coverage protection. Though the Fire All in One is designed to protect you contractually, that doesn't mean that you can engage in conduct, or misconduct, and get away with it.  Keep in mind that all it takes to keep you in a lawsuit, exposed to unimaginable damages, are two words by someone wearing a robe, "motion denied".  That would be the motion for summary judgment getting you out of a lawsuit.  Though the law in every jurisdiction favors enforcement of the protective provisions in the Standard Alarm Agreements, not all alarm companies use those contracts [only the smart ones] and there is always the risk that a rogue judge will simply refuse to enforce the law or not sufficiently understand it.  
               So besides using the Standard Form Agreements, my other advice is to do the right thing.  You do the right thing when you point out to the subscriber that the alarm system is not to code, that is poses a danger because it's not to code, and that while it may be grandfathered in, it should be updated to comply with code and AHJ approval.  You point this out in your contract and you point it out in the Disclaimer Notice. You point it out in your Inspection Report or Service Slip.  To remove any doubt about your right to notify the AHJ of deficiencies, the All in One Agreements have been updated to specifically authorize the alarm company to use its discretion in notifying the AHJ of deficiencies or non-functioning alarm systems, especially fire alarm systems.  This change will be in the 2019 copyright forms [and are already included in our forms now].  
               There is no question that you face exposure for staying involved in a deficient fire alarm system.  A claim could come from an adjoining property owner, a tenant, a visitor or your customer. Sure you may be able to rely on your contract for protection, your carrier for handling the claim, but wouldn't it be good news if you could also rely on documentation that you notified the customer and AHJ of the deficiencies?  I think so.  Though it might should crazy, you might even want to notify adjoining property owners or tenants in the building to let them know that the fire alarm system in the building is not working.  Maybe they have a right to know.  Think that's going too far?   Isn't that your sign in the lobby that says you installed, service, inspect and monitor the fire alarm?  
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leased fire alarm not wanted by new owner
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Ken,
               Thank you for your daily newsletter over the years. I have found them very helpful and a compass by which to run my operation. My question to you is a little complicated, so here goes.
               Our company installed a full fire alarm system in a restaurant, using your contract, the Fire All in One, of course. The system is leased on a ten year contract signed by the landlord/tenant and the owner as a personal guarantor. Three years into the contract we found out that the landlord/tenant sold the business and the building to a new party. We have contacted the new owner who has informed us that the previous landlord sold them the building with everything in the building included and they do not plan to use our company going forward as they have their own company at another location.
               I know I can sue the previous landlord, and the personal guarantor as well, but can we sue the new owner for our system?  Second do we have any rights to remove our system?  Third the building is under renovation right now and I can send a tech to remove the panel and other equipment, but does that leave me in any jeopardy of legal or criminal action. What do you suggest as my course of action here.
Thanks again,
Gilbert Stewart
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Response
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               Good question.  Your first "look to" will be the customer and guarantor who signed the contract. They will be hauled into arbitration and you have a very high chance of success.  Though recovery of a judgment is the hard part here, it's probable that the property owner has assets and will be concerned about a judgment; I think you should recover a judgment.  
               The Fire All in One Lease is crystal clear that you always own the equipment.  The new property owner cannot acquire title or rights to the equipment from the old owner. The new owner will argue that the fire alarm is integral to the building, that you didn't file a UCC-1, that you didn't have any notice of ownership on the equipment and that the equipment title passed together with the real estate.  You should prevail, and I won't even have to bring in Robert Kleinman, Esq., an expert in this area of law.  
               You can remove your equipment if you can enter the premises without breaching the peace.  That however is probably not a good idea because you could face claims that you caused damage or removed property that was not yours, like a gold Rolex that was left at the jobsite.  The All in One lease has the equipment value and you're better off either suing for that value, for conversion, or seeking an affirmative injunction permitting you to remove the equipment.  Kleiman is good at pulling out the wires and may be willing to give you a hand.
 
 
 
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com