The risks of asbestos in commercial property

Wilson Browne

1st April 2018

Legal Briefing

Wilson Browne

By Rachel Timms

Wilson Browne Solicitors

THE Control of Asbestos Regulations 2012 came into effect on 6 April 2012. Failure to comply with these constitutes a criminal offence and is punishable by an unlimited fine and/or up to two years imprisonment. Affected persons may also bring negligence claims against the duty holder.

Regulation 4 of the CAR 2012 imposes a duty to manage asbestos risk in non-domestic premises.

Purchase Transactions

A buyer will become a duty holder on completion with immediate effect. A buyer must therefore obtain a copy of the seller's written asbestos plan and most recent survey.

However, there is no duty on the seller to provide this information. Therefore if the buyer is unable to obtain it they should carry out their own survey, particularly where refurbishment works are planned to older properties, so that the cost and extent of asbestos management can be assessed.

Landlords and Tenants

The lease should clearly determine repairing liabilities, and usually the lease will require the tenant to comply with its statutory liabilities. The written plan will show what work is planned; it may also indicate problems the tenant may face in carrying out alterations.

Where a lease imposes repairing obligations on a tenant, the landlord should ensure that the tenant is aware of its obligations under Regulation 4 and be satisfied that the tenant has complied with them.

Where the landlord has repairing obligations, it may need to gain access to demised parts of the building to carry out the surveys. The lease will set out the terms of entry and whether survey costs and costs of compliance can be recovered from the tenants under the service charge.

In multi-let premises, the responsibility for maintenance of the common parts, services, external fabric and main structure of the building will usually lie with the landlord. The landlord will be a duty holder and will be required under Regulation 4 to arrange asbestos surveys and for copies of asbestos registers to be produced to each tenant.

Where the landlord has passed the responsibility for repairs and maintenance for the property to the tenant, the landlord will continue to be a duty holder: the landlord may have to step in and carry out work in the event of the tenant's default. The landlord will become the primary duty holder on a forfeiture or surrender, and on the expiry of the term of the lease, however determined.

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