What are your obligations as a landlord of commercial premises in relation to asbestos?
What is asbestos?
Asbestos is a material made up of six fibrous minerals. It was widely used in a range of building materials to provide protection from heat, fire and sound.
Why is asbestos of concern?
In the late 1960s, it became evident that there were health issues associated with the use of asbestos. It is now known to be a significant health hazard especially when the substance is disturbed or damaged and one effect is that it can increase the risks of cancer.
Regulation of asbestos removal and sanctions for non-compliance.
Whilst it is now illegal to use any form of asbestos in the construction and refurbishment of any buildings, there remains the need to regulate the use and removal of asbestos and as such there are obligations imposed by law for people to abide by.
The Control of Asbestos Regulations 2012 (CAR 2012). CAR 2012 governs dealings with asbestos. It is important to note that failure to comply with the requirements of the CAR 2012 constitutes a criminal offence which is punishable by a fine and/or imprisonment. The penalties that could be faced for non-compliance could be a fine of up to £20,000 and/or imprisonment for up to 12 months. In the case of a serious breach, there could be an unlimited fine and/or imprisonment of up to 2 years, so it is important for a landlord of non-domestic premises to be aware of its duties and obligations.
Below is a summary on the legislation and guidance on how to ensure compliance with CAR 2012 in relation to non-domestic property. Non-domestic properties include offices, retail premises and warehouses and amongst others can include certain parts of residential property.
Regulation 4 of CAR 2012 provides a duty to manage the risk of asbestos in non-domestic premises. It imposes a duty to ascertain whether asbestos is present or likely to be present in a building and a duty to manage the same.
Who is responsible for managing any asbestos risk?
If you are a person or company with an obligation to maintain and repair non-domestic premises and those non-domestic premises contains communal areas for the use of tenants or from which tenants access their property, there will be a responsibility to manage any risk of asbestos (as explained above) and would therefore be regarded as the “duty holder”. The duty also falls on freehold owners of non-domestic properties who occupy the property, leave the property vacant, leases all or part of the property to tenants or grants a licence to occupy to an occupier. Owners of vacant properties and warehouses will also be required to arrange an asbestos survey.
The duty holder can be identified by looking into their duties with respect to their repair and maintenance obligations. Where the obligations of a freeholder are limited with respect to access for repair or the right to carry out maintenance, it may be that the obligation of the duty holder falls on the tenant but it should be noted that the freeholder will remain responsible alongside the tenant. The less control that a landlord may have over a building can be an indication that they are not the sole duty holder.
Where there is a sub-lease granted by a tenant to an occupying tenant (or undertenant), there may be an obligation under the tenant’s current lease to maintain and repair the property. The occupying tenant may be the primary duty holder, but it is likely that both the tenant, the occupying tenant and possibly the landlord are all duty holders with respective duties.
How to manage an asbestos risk
In order for the responsible person to manage the risks from asbestos, they will be required to carry out an assessment to ascertain whether asbestos or an asbestos containing material is present by instructing an accredited surveyor to carry out an asbestos survey. However, buildings that were constructed after 1999 should not contain such materials as there was a change in building control requirements.
If asbestos is evident, the material will need to be analysed by a relevant specialist and a record kept of what is found. A duty holder will need to carry out a health and safety assessment and ensure that the information is distributed to all and any person who is likely to come into contact with the affected area (this is known as an asbestos management plan).
There are a number of regulations governing the duties of a duty holder and there is limited defence that can be used with respect to Regulation 4 of the CAR 2012, so it is important to know what those duties are and to ensure strict compliance with them. If in doubt, or have any questions regarding this, please contact the Commercial Department us on 01702 338338, 01277 500123 or 0208 049 5888.