What are your responsibilities if asbestos is present in a building you own, manage or rent?
As you will already know asbestos is a harmful mineral fibre that was commonly used by the building trade between the 1950’s and 1980’s. Although it was banned in 1999, it can still often be found in many properties built before then.
With that in mind we would suggest all landlords should err on the side of caution and assume that all pre-2000 buildings contain some asbestos, particularly as The Control of Asbestos Regulations 2012 (the 2012 Regulations) or CAR creates ‘dutyholders’ who are legally obliged to:
1. Determine whether any asbestos is present/is likely to be present, in a building
2. Manage any asbestos that is or is likely to be present
‘Dutyholder’ is admittedly a broad term. In many cases – especially when it comes to multi let buildings – both the landlord and tenant could be a ‘dutyholder’; the tenant would be responsible for the unit they occupy and the landlord for the common parts and structure of a building.
If there is more than one dutyholder for the same building, the terms of the Tenant’s lease will determine exactly what contributions Landlord and Tenant have to make and these will depend on the ‘nature and extent of the maintenance and repair obligation owed by each dutyholder’.
Looking specifically at multi-let premises a landlord will be a dutyholder. As such until they must ensure they have fully complied with the Asbestos Regulations. Often the service charge provisions in a tenant’s lease will allow a landlord to recover the cost from the tenants they need to, but you should always pay special attention to the service charge provisions in case any asbestos related work is required.
If a tenant is the duty holder and they fail to comply with the Asbestos Regulation the landlord has a duty to step in and complete any necessary works. Again, if that is needed, the landlord may be able to recover the cost of the works and other losses they incur from the tenant under the terms of the Tenant’s Lease or in the form of damages.
And always bear in mind that as it is both a civil and a criminal offence to not comply with the Asbestos Regulations, there will be penalties and those penalties could well include large and unlimited fines or even a prison sentence of up to 2 years.
So in summary if you are a landlord you must:
• Establish whether you and/or your tenant is a dutyholder
• Undertake an asbestos survey to determine if there is any asbestos in the building and if so, where it is
• Carry out a health and safety risk assessment
• Share the information with anyone likely to encounter the asbestos
• Comply with the recommendations of the asbestos surveyor and continue to review the asbestos as per their recommendations
• Make sure all your tenants are complying with their obligations
If you are concerned about the presence of asbestos in any of your buildings and/or you would like to discuss what you’ll need to do as either a landlord or a tenant, please call Hollie Hemmens on 0114 290 6337 or email Hollie at firstname.lastname@example.org.