Asbestos is a set of six naturally occurring minerals that exist in today’s environment, as a result of extensive use in construction during the 20th century.
It is now recognised as one of the world’s most significant health hazards. Where asbestos is disturbed and released into the air, inhalation of the substance can cause lung disease, among other serious health conditions. As such, the use of asbestos is now illegal in new buildings but a vast amount still remains in existing buildings.
The current regulations dealing with asbestos in buildings are the Control of Asbestos Regulations 2012 (CAR 2012), which came into effect on 6 April 2012. The CAR 2012 replaced the Control of Asbestos Regulations 2006 (CAR 2006) , with minor modifications.
Regulation 4 of the CAR 2012 creates a duty to manage asbestos risk in “non-domestic premises”. It is a common misconception that the regulations do not apply to residential premises but in fact they can do. This is set out in more detail below.
There is no definition of “non-domestic premises” within the CAR 2012 but they include:
Commercial premises (offices, retail and warehousing)
Industrial premises (factories, processing plants and garages)
Service premises which contain members of the public (schools, hospitals, etc).
CAR 2012 also apply to certain parts of residential premises including:
Houses converted into flats –the common parts used for access, circulation and storage (for example, the entrance lobby, staircase and roof space)
Garages and parking spaces not specifically allocated or demised to persons
Blocks of flats – the common parts (for example, foyers, lifts, stairs, lobbies, boiler and plant rooms, roof spaces, communal yards, gardens, store rooms, external outbuildings and bike shelters).
Regulation 4 places an obligation on the “duty holder” to determine whether asbestos is present in a building, or is likely to be present and to manage any asbestos that is or is likely to be present.
The duty holder
The duty holder in relation to any premises is any person who has an obligation for the maintenance or repair of the premises, or who has control of the premises. The definition is extremely broad and includes all owners, landlords, tenants, licensees and, potentially, managing agents and maintenance contractors. There can often be more than one duty holder and this is frequently the case with premises let out to tenants.
The nature and extent of the maintenance and repair obligations of each duty holder will determine the contributions in complying with the regulations.
Duty to assess
The duty holder must conduct a “suitable and sufficient” assessment to ascertain whether asbestos or asbestos-containing material is, or is liable to be, present at their premises.
In making the assessment, the duty holder must take such steps as are reasonable in the circumstances but, in most cases this will involve the duty holder commissioning an asbestos survey prepared by a suitably qualified surveyor.
Managing the risk
Where asbestos is present or is likely to be present in the premises, the duty holder must ensure that:
A determination of the risk from the asbestos is conducted
A written plan is prepared to identify those parts of the premises that are affected by asbestos and
The measures to be taken for managing the risk are specified in the written plan.
Landlords and tenants
Where the landlord is responsible for an element of the maintenance and repair (for example structural repairs) in buildings that have multiple lettings, the landlord will be responsible for arranging an asbestos survey for the parts for which it is responsible. Copies of the survey should be provided to each of the tenants.
Where the tenants are responsible for the maintenance and repair of the whole of a building, they will be a duty holder and will need to assess the risk of asbestos being present, and prepare the written plan for its management. The landlord will also be a duty holder and whilst it may be satisfied that its obligations are complied with, by inspecting and maintaining a copy of the tenant’s survey and management plan, the landlord must be prepared to step in if the tenant is in breach of its obligations.
Acting for a purchaser
When acting for a purchaser in relation to a residential property being subject to the CAR 2012, you should consider the following points. These are not an exhaustive list but give some guidance as to the enquiries to be raised:
Will your client be a duty holder?
Is there likely to be another duty holder in relation to the property?
Has an assessment been carried out?
Has your client reviewed the assessment?
Has your client recorded the results of the assessment?
Has the risk from asbestos been determined?
Has a written plan been prepared for managing the risk?
Has information been passed on to people liable to disturb asbestos?
All duty holders should be made aware that they are subject to enforcement and criminal liability for failure to deal with asbestos appropriately.