Who is Responsible for Managing Asbestos in Your Commercial Property?
This is a common question from both landlords and tenants when a new lease is to be entered into and it is usual for tenants to insist on seeing an asbestos survey before entering into a new lease.
Regulation 4 of the Control of Asbestos Regulations 2012 (Regulations) imposes a duty to manage asbestos risk in non-domestic premises. This requires the ‘duty holder’ to determine whether asbestos is present in a building or likely to be present, and to manage any asbestos that is or is likely to be present.
Firstly, a landlord does not have to arrange an asbestos survey in order to let a property. This is a common misconception. Many tenants think that this is a mandatory requirement (like an EPC) but this is simply not the case. The landlords only requirement is to comply with its obligations as ‘duty holder’ under the Regulations but this is not a pre-requisite to letting the property to a tenant.
A landlord must keep in place its own records and a written plan to manage asbestos and they are required to provide information about the location and condition of any asbestos to anybody who is liable to disturb it. This would typically include tenants, contractors and employees. However, tenants who believe that they can force a landlord to carry out an asbestos survey are incorrect.
Secondly, a ‘duty holder’ is any person who has an obligation to maintain or repair a commercial premises or exercises some element of control over the whole or part of it or has a means of access to and from the premises. This captures anybody with an interest in the property (under a tenancy or not). This means that there can be more than one person at any one time who is a ‘duty holder’. Therefore, in the landlord and tenant scenario, the landlord is the duty holder before the lease is granted, and both the landlord and tenant are duty holders after the lease is granted.
A landlord cannot shift the obligations of duty holder to a tenant, but as soon as the tenant signs the lease it will become a duty holder in its own right.
Where there is more than one duty holder, the contributions to be made by each party in complying with the Regulations are determined by the nature and extent of the maintenance and repair obligations owed by each party to the other. In other words, a carefully drafted lease can place most (if not all) of the obligations on to the tenant.
Finally, it is worth noting that:
- ‘Managing’ asbestos does not necessarily mean removing it. The only requirement is to have an action plan and a system in place for managing the risk. In many cases the best decision may be to leave the asbestos in place because it is contained and ‘safe’.
- Even when the tenant signs the lease and becomes a duty holder, the landlord will still have to step in and carry out work in the event of the tenant’s default.
How can Askews Legal LLP help you?
Askews Legal LLP Solicitors in Coventry has a dedicated team of Property specialists who can assist with any commercial property issues. For further advice or to obtain a quote, please contact Kuljeet Sandhu, Head of Commercial Property at Askews Legal LLP.
Askews Legal LLP – Solicitors Coventry.
