Landlords, tenants and landowners need to be aware of new laws regarding asbestos in non-domestic properties that came into effect on 21 May 2004.
Regulation four of the Control of Asbestos at Work Regulations deals with the duty to manage asbestos in premises built prior to 2000. This means that those responsible for non-domestic premises (duty holders) will have to change the way they deal with asbestos in buildings and will be obliged to “search” for the substance.
Under the previous Health and Safety at Work Act, Control of Asbestos at Work Regulations 1987, it was assumed that duty holders knew where asbestos-containing materials were located. However, the new regulation imposes a new duty to locate and manage asbestos on all those who have responsibilities for the maintenance of non-domestic premises.
Landowners, landlords, tenants and management companies of premises built before 2000 will be affected by this regulation and their responsibility will extend to cover unoccupied premises and communal areas of domestic premises such as shared stairs and loft spaces.
In the case of leasehold premises, both landlord and tenant will be required to look at the terms of the lease to establish where the responsibility lies. In the absence of any written agreement, consideration will be given to who has the greater degree of control over the premises. In addition, there will also be a positive duty upon occupiers of premises to co-operate and comply with measures put in place to manage the risk from asbestos.
Duty holders must presume there is asbestos at the premises unless there is strong evidence to the contrary, undertake surveys to determine the location and condition of asbestos in non-domestic premises and prepare and maintain an up-to-date written record of the findings.
The duty holder will also be required to prepare a plan setting out how the risks from the material are to be managed, take necessary steps to put the plan into action and provide information on the location and condition of the materials to anyone who is liable to work on or disturb them.
The new regulations also provide for three levels of survey to be carried out to establish the existence and location of asbestos. Therefore, before buying or leasing a property, it is strongly recommended that an asbestos survey is carried out to find out what remedial and removal works will be required in order that the costs and liabilities can be taken into account in negotiations.
However, it should be emphasised that the regulations do not require duty holders to remove all asbestos. The duty is to manage it.
