The whole issue of asbestos, understandably because of the nature of the substance, is shrouded in considerable misunderstanding and apprehension. The long and the short of it is, who is actually responsible for asbestos in the building and what happens when there is no Asbestos Report relating to the property?
The answers to these queries can be found in the Control of Asbestos Regulations 2012 and in particular Regulation 4. This imposes a duty upon the “duty holder” to manage any risk from asbestos in commercial properties. That duty is to establish whether or not asbestos is present in the building or is likely to be present and to manage any asbestos that happens to be there or which is likely to be present.
On the face of it, it seems that there needs to be an asbestos survey in order to sell or let the property. This, in fact, is not the case; the only requirement is to keep records and a written plan as to how to manage asbestos so that information concerning its location and the condition of the asbestos can be made available to anyone who is liable to disturb it. The information, therefore, does not need to be in the form of an asbestos survey.
The second problem is that the “duty holder” can be either the landlord/seller or the tenant/buyer or both the landlord and tenant or one and then the other. It all depends upon who is obliged to maintain and repair the commercial property and who exercises control over access to it. Potentially, the “duty holder” can catch anyone who has an interest in the property, whether they are 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 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 respect of those parts of the building where there is asbestos over which it retains control. This may be common areas, a management suite retained by the landlord or retained areas where, for instance, communal boilers, heating systems and the like are kept.
Another misconception is that “managing” asbestos means removing it. This is not necessarily the case. The only obligation is to have a plan of where it is and what state it is in together with a system of managing the risk that asbestos may cause harm. Usually, the best thing to do is to leave the asbestos in place, undisturbed, so that it is contained and safe.
The management of asbestos is still very much an issue which tenants must particularly bear in mind. The North East still has a considerable number of old buildings where the use of asbestos in one form or another was common. The management of asbestos is something that should be addressed at the time that Heads of Terms are discussed with regard to a prospective letting. Any information that the landlord has about asbestos should be made available to the tenant at an early stage. To do so should ensure for a quicker and smoother passage to the grant of the lease transaction.
For further information, please contact Richard Freeman-Wallace, Partner at Hay & Kilner
Call: 0191 232 8345