By Richard Freeman-Wallace, Partner at Hay & Kilner Solicitors
The whole issue of asbestos, understandably because of the nature of the substance, spreads fear across the industry, but in my experience, it’s fear without anybody actually really understanding the problem. Do people actually know who is responsible for asbestos in a building and what happens when there is no Asbestos Report relating to the property?
Luckily for us, the answers to all our queries can be found in the Control of Asbestos Regulations 2012, in particular Regulation 4. The regulations impose a duty on the “duty holder” to manage any risk from asbestos in commercial properties. The duty is to establish whether asbestos is, or is likely to be present in the building. If it is present or likely to be present, then it states it is their responsibility to manage what happens.
Most people think that in order to sell or let a property an asbestos survey must be carried out, when in fact this is not the case. The only requirement is to keep records and a written plan on how to manage asbestos, keeping information regarding the location and condition of asbestos available to anyone who is likely to disturb it – meaning a survey is not needed.
So who exactly is the “duty holder”? The “duty holder” can be the landlord/seller, the tenant/buyer, or both the landlord and tenant or one and then the other. It all depends on who is obliged to maintain and repair the commercial property and who exercises control over access to it. Potentially, the “duty holder” can be anyone who has an interest in the property, whether they are a freeholder, tenant, a sharer of occupation or concessionaire. Typically, in the case of a lease, the landlord is the duty holder before the lease is granted, but the tenant then becomes the duty holder, where the tenant is solely responsible for the area where there is asbestos. The landlord can continue to remain the duty holder in parts of the building where there is asbestos, for instance in common areas such as areas where communal boilers, heating systems etc. are kept.
The management of asbestos is still very much an issue which must always be kept in mind, especially in the North East since we still have a lot of old buildings where the use of asbestos in one form or another was very common.
Another huge misconception is that “managing” asbestos means removing it – this is not necessarily the case. The only obligation is to have a record of where it is, what state it is in and a system of managing the risk that asbestos may cause. Usually, the best thing to do is to leave the asbestos in place, undisturbed, so that it is contained and safe – like the old saying goes, if it’s not broke, don’t fix it!