Asbestos management – do you know the law?
Sarah Willshire, Senior Associate, explains landlords' obligations and legal duties for assessing and managing asbestos in commercial properties.
Asbestos was widely used in the construction industry until 2000, so any property built before then could contain asbestos. It is a criminal offence not to manage asbestos if it is present in your commercial property but, worryingly, many property owners do not know the law, or their obligations.
The duty to assess and manage
The starting point is to assess whether asbestos is present. Depending on the size and type of building, you may need a formal report prepared by an asbestos surveyor, or you can sometimes inspect yourself. The person inspecting the property should presume that asbestos is present unless there is strong evidence to the contrary.
Next, you must record your findings in a document detailing the location and condition of the asbestos containing materials (or the ones which you presume contain asbestos).
Then you must plan how to deal with the risks posed by the asbestos. Some asbestos will be so dangerous to the health of those at the property that is must be removed immediately, but often less harmful forms can be managed by covering them over or simply not disturbing them.
Finally you must manage the asbestos risk by putting your plan into action. You also have to review and update your plan periodically.
Refurbishment or alterations
The rules are different if you intend to carry out works which could affect or disturb asbestos. You need to obtain a more detailed survey which will advise on whether the asbestos needs to be removed or how the works can be done safely without disturbing the asbestos. You will need to provide a copy of this survey to the builder before starting the works. Removal must be carried out by a licensed asbestos contractor, who will provide paperwork certifying that the removal was done correctly and safely.
Who is responsible?
It is not always clear who has the duty to manage asbestos. If you own and occupy your premises then you are responsible, but if you rent out premises to a tenant, it could be their responsibility under the lease. If you have a building let to multiple tenants, you will need to manage asbestos in the common parts (e.g. lift shafts) even if each tenant has the duty to manage their own space. Always seek advice if you are unsure how the rules apply to your property.
Buying a new property?
Many sellers are unaware of their asbestos obligations and will not have a survey or management plan in place. Once you buy, it becomes your responsibility. If the seller cannot produce them, you could either insist that the seller has a survey done before completion or that the cost of you carrying one out afterwards is deducted from the purchase price.
Sarah Willshire is a Senior Associate in our Commercial Property team and can advise on all aspects of buying, selling and leasing commercial properties. If you have any queries on asbestos management or other commercial property matters contact Sarah at email@example.com.
About the author
Sarah Willshire is a Partner and Head of the Banking team in Newcastle.