Asbestos management requirements for commercial property landlords
The Control of Asbestos Regulations 2012 mean it is a legal requirement for asbestos risks to be managed in all commercial properties, but every year a collection of landlords and tenants are prosecuted for failing to meet their obligations.
Those who end up in Court are a mixture of people who were unaware of the Regulations, who knew they existed but chose to ignore them, and who did not carry out the necessary work because they did not realise they were responsible for it.
Finding out who is required to manage asbestos risks in each property and what that involves is time well spent, as being prosecuted for failing to comply with the Regulations can lead to a fine of up to £20,000 and a prison sentence of up to 12 months, with the penalties for serious breaches rising to unlimited fines and imprisonment of up to 24 months.
Who is the dutyholder for a commercial property?
The asbestos dutyholder for a commercial property may be either the landlord, the tenant, an appointed agent or in some circumstances, a combination of them. The tenancy agreement should state clearly which party is responsible for maintenance and repairs, and the law will regard them as the asbestos dutyholder.
Arrangements that could be detailed in the tenancy agreement include:
- The landlord taking on responsibility for asbestos management in the entire building
- The leaseholder being named as dutyholder in a single occupancy premises
- In a multi-occupancy building, tenants taking responsibility for their space and the landlord becoming dutyholder for the common parts
- A managing agent being appointed to handle all maintenance, including becoming the asbestos dutyholder
If there is no formal tenancy agreement or it does not state who has responsibility for maintenance, the dutyholder is whoever has control of the commercial property. In most cases, this will be the landlord.
The legal duty to manage asbestos also applies to empty non-domestic premises. Unless maintenance has been contracted to an agent, the dutyholder will be the owner of the property.
What does the duty to manage asbestos involve?
In short, it is to prevent anyone being exposed to carcinogenic asbestos fibres by ensuring that the substance is identified and that steps are taken to prevent it being disturbed.
The key to getting this right is to have an asbestos survey carried out by a specialist contractor, who will identify which asbestos containing materials are present, assess their condition, arrange for samples to be taken, if necessary, and make a record of their location. Theoretically, you could undertake this inspection yourself, but unless you are aware of the hundreds of different products that could contain asbestos, it will not be comprehensive enough.
The information from the survey should be used to create an asbestos register showing where the materials are located, which should be referred back to every time any maintenance work is to be undertaken in the building.
The risks posed by the asbestos also need to be assessed and a plan drawn up to deal with them. Typically, asbestos containing materials that are in a poor condition need to be either removed or encapsulated as early as possible. Many such tasks can only be legally undertaken by licensed asbestos removal and disposal contractors, so check before you hire anyone to do the work that they have the relevant licences.
Another part of the asbestos management plan should be to ensure the materials are not disturbed. Key to this is informing workmen of the presence of the substance and its location, so that they do not disturb it when carrying out repairs. You should also think about the building’s day-to-day usage and consider who needs to be told about the asbestos - for example, tenants in a retail premises may need to be advised not to attach displays and posters to certain walls or pillars.
It is also important to carry out regular inspections to check the condition of asbestos containing materials against the descriptions in the asbestos register. Keep a record of these inspections and ensure that you take the appropriate remedial action if the condition of the asbestos shows any sign of deterioration.
One exception to this is if the commercial property was built after 2000, as asbestos had already been banned from use in construction projects by that time. If the premises were built before then, the dutyholder must assume asbestos containing materials are present until it can be proved that they are not.
For advice about asbestos survey and removal services for commercial properties, get in touch with licensed contractor BLS Asbestos by calling 01484 400558 or via the website.