Asbestos regulations were last updated in 2012, bringing the UK in line with EU regulations, which means the current regulations have been in place long enough for most experienced landlords to be familiar with them. The regulations were put in place due to the harmful nature of asbestos which led to around 3000 deaths in 2015 alone, with this number potentially rising for the next few years, not beginning to decline until well into the 2020s.
Landlords of residential and industrial properties have been dealing with the problem of asbestos for decades. Legislation on removal is widely available but can often depend on terms within the tenancy agreement making it rather confusing who is responsible in any one situation. Below we address some common, but confusing asbestos removal situations and address some of the legal ramifications of failing your duty to manage asbestos risk.
It is important to note that your duty to manage does not mean you have to remove all traces of it from your properties. Often asbestos will be in a good condition and should be encased with appropriate materials rather than disturb it more trying to remove it, as this may cause even more of a danger. Your risk assessment or asbestos survey should identify the material in your building and also report on condition, giving you a reasonable idea of the course of action required.
Responsibility for asbestos in residential properties depends, in part, on the agreement made with the tenant; in most cases, your duty as a landlord will extend to carrying out risk assessments before work is done by contractors, but not much beyond that. However, it is also stated that you should minimise the risk of tenants’, visitors’ or contractors’ risk of exposure, so you can’t just carry out a risk assessment on a flat in your building you want to rent, find it has asbestos and then leave it – you have to take to right actions before renting it and continue them through a tenancy. Residents also have a responsibility to help you monitor asbestos, so if it’s damaged, they don’t tell you but try to claim you’ve been negligence in your duty, then their case would fail.
Common areas of buildings don’t hinge on residents informing you of necessary repairs; it is your responsibility to maintain hallways, stairways, entrances and any other parts of the building that are not a private unit. You need to risk assess these areas and then take steps to ensure their regular monitoring and maintenance, as well as informing any tradespeople of asbestos dangers. Failing to do so could expose you to action from local councils or even directly from tenants or contractors in the form of negligence claims.
Those in the North East, the North West and Scotland are most likely to have to deal with asbestos in buildings, and those dealing specifically with property around old shipbuilding yards, steel plants or other old industrial buildings will need to be hyper-vigilant.
As with residential properties, the duty holder for a commercial property will depend upon the terms of the occupancy, but if none is stated it will revert back to the landlord by default. The guidance given for asbestos mainly talk about risk assessing and “managing risk”, but the plain fact of the matter is that you have to prevent tenants being exposed to asbestos. With commercial properties the likelihood of asbestos being in a poor condition or becoming damaged is greatly increased, so records of asbestos location, condition and passing on the information to commercial tenants are especially important.
Even if the agreement you have made on the lease states that the tenant is responsible for dealing with any upkeep or maintenance of the building, if you fail to carry out appropriate surveys and checks before leasing the property, you could be liable for injury caused by the substance. This is because you did not fulfil your duty to manage before the property was put in the care of someone else; without the correct knowledge shared, they could not put in place the right safety precautions. The duty of care also covers derelict or empty premises, as specified by the government and HSE, to avoid precisely the situation above.
The penalties for failing to carry out your responsibilities could mean a £20,000 fine and up to 12 months in prison, but if your negligence is severe the fines can be unlimited and imprisonment can be up to 2 years. Asbestos regulations might seem to be a constant irritation you have to deal with as a landlord, but the law is in place for good reason – to protect the health of current and future generations from harm – and with an estimated 18 million homes, not including industrial sites, thought to contain asbestos, it’s a business and social responsibility landlords have to bear.
Your Legal Friend has over 30 years’ experience in the legal industry and specialises in several sectors including personal injury, professional negligence and group litigation. We are Lexcel accredited, and Law Society accredited in two areas as well as being part of several solicitors societies dedicated to maintaining the integrity of legal practice in the UK.