Megan Harris in law firm Blandy & Blandy’s Commercial Property team, explains the law regarding asbestos and landlord, tenants and other parties’ legal obligations. 

The health problems associated with asbestos have been known for many years and legislation makes it illegal to use any form of asbestos in the construction or refurbishment of buildings.

Many buildings that were constructed before the legislation still have asbestos present which can become an issue, particularly if the asbestos is disturbed or damaged.

Any building which was constructed after 2000 can be presumed to be asbestos-free but care should still be taken where those premises are built on top of or next to existing buildings or structures.

The risks in not knowing about potential asbestos prior to a purchase or lease are:

  1. You could be breaching legal obligations as a dutyholder and/or as an employer and the consequences of this can be severe; and
  2. You would not know the steps needed to manage and potentially remove asbestos which can be very costly and time consuming.

The legislation (The Control of Asbestos Regulations 2012 (SI 2012/632)) imposes an obligation on the dutyholder to manage asbestos risk in commercial premises.

Who is the dutyholder?

There is a broad definition of ‘dutyholder’:

  1. Every person who has (through a contract or tenancy) any obligation relating to the repair or maintenance of the premises or any means of access to or from the premises; or
  2. If there is no contract or tenancy every person who has to any extent control of that part of the premises or access.

You become a dutyholder immediately on completion of a purchase or lease; there is no preparation period.

How to comply with the legislation?

The dutyholder must take such steps as are reasonable in the circumstances to:

  1. Determine whether asbestos is present or is likely to be present (there is a presumption that materials contain asbestos unless it can be proven otherwise);
  2. Manage any asbestos that is or is likely to be present; and
  3. Assess the risk and have an action plan in place to manage the risk.

In most scenarios the dutyholder should have an asbestos survey undertaken by a specialised surveyor including testing of materials that may contain asbestos.

If asbestos is found or is likely to be present a written plan must also be undertaken to include measures for monitoring, maintaining or removing asbestos or asbestos containing materials. Information about the location and condition of the materials should also be made available to anyone who may disturb it.

There is also an obligation to implement the measures in the written plan and review the assessment at regular intervals including when it may no longer be valid or where there has been a significant change to the premises.

The dutyholder may also have obligations as an employer but that element is not covered in this note.

 Consequences of not complying

The consequences of failure to comply with the requirements of the asbestos legislation can be severe. It is a criminal offence which can result in a fine, prison sentence or both and is enforceable by the local authority or the Health and Safety Executive (HSE) depending on the type of property. Those affected (eg employees) can also bring a civil action against the dutyholder.

Separately to this there may also be significant cost involved in complying with the asbestos legislation (including obtaining a survey and the cost of complying with the report) which you may not have budgeted for.

This is why it is so important to be aware of the position regarding asbestos before entering into any contract or lease and why we would advise that any buyer or tenant insists on seeing an asbestos survey prior to committing to a purchase or lease.

For legal advice in relation to buying, selling or leasing commercial property, please get in touch with Blandy & Blandy’s commercial property team.

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