Commercial Property and Asbestos
What is asbestos?
Asbestos is a natural silicate mineral which was a commonly used building material due to its useful fibrous properties. It is often found in buildings built or renovated pre-2000 and was used in many different parts of a property. Following the discovery of the serious health impacts of asbestos, in 1999 all types of asbestos were banned from use within the UK. Although asbestos can no longer be used, it can still be present in a property. Only when disturbed or damaged does asbestos become dangerous and a risk to health. Therefore, it is very important as a buyer, seller, tenant or landlord of a property to be aware of the potential existence of asbestos.
Control of Asbestos Regulations 2012
Owning or leasing a commercial (non-domestic) property carries with it an extended responsibility to comply with the Control of Asbestos Regulations 2012 (SI 2012/632). Regulation 4 provides that an owner of a commercial property will be the ‘duty holder’ of the property, but it can also include tenants and occupiers too. The duty holder is the person responsible for managing the asbestos risk in a non-domestic property. They must determine whether asbestos is present in the building, assess the risk, and have an action plan in place for managing the risk.
Buying or leasing a commercial property
If you are looking to buy or lease a commercial property, part of the legal due diligence that we, as your solicitor, will carry out on your behalf includes checking a detailed set of pre-contract enquiries known as Commercial Property Standard Enquiries (CPSEs). Usually, any knowledge of the presence of asbestos or the availability of an asbestos survey report will arise when the seller or landlord responds to the CPSEs.
If it is unknown or unclear as to whether or not there is asbestos in the property, then an asbestos survey should be commissioned either by the seller, or if they refuse by yourself, so that you are aware of the presence of any asbestos before you commit to purchasing or leasing the property. It is important to note that there can be significant cost implications when buying a property containing asbestos and therefore foreknowledge of asbestos can influence negotiations with the landlord or seller. An asbestos survey is not just beneficial to a buyer, as a lender will usually also require an asbestos survey so that they are aware of the true condition of the property.
Selling or letting out a commercial property
It is not illegal to sell a commercial property containing asbestos, nor is a seller or landlord legally required to commission their own asbestos survey. If an asbestos survey has been carried out a copy should be provided to your solicitor. If one has not been carried out, a buyer or tenant may request that you do so before they complete the transaction.
Failure to comply with the requirements of the Control of Asbestos Regulations 2012 constitutes a criminal offence because the Regulations are made under the Health and Safety at Work etc. Act 1974, and it is an offence for a person to contravene any health and safety regulations. The Health and Safety Executive enforces the regulations.
Removal of asbestos
Asbestos can only be removed by a licenced asbestos contractor. Where it is unknown whether or not asbestos is present, an asbestos survey should be conducted prior to any work to ensure there is no asbestos present.
Leading cases
In 2019, Birmingham Magistrates convicted a landlord of breaching regulation 4 after he had commissioned a building contractor to replace a conservatory. During these works the contractor had spread asbestos throughout the property due to failing to remove the materials in a safe way. The HSE stated that an asbestos survey should have been conducted prior to starting the works and as such, the landlord was breaching his duty to his tenant as ‘duty holder’. The landlord was fined £1,200.00 and required to pay costs of £607.21. The contractor was also required to pay costs and sentenced to 150 hours unpaid work.
What should a property owner do about asbestos?
The law is clear on an owner’s responsibilities with regard to asbestos and managing it. The following steps should be taken to minimise an occupier’s risk of exposure to asbestos:
- Have an asbestos survey carried out by a suitably qualified surveyor to assess the presence of and risk that the asbestos creates, noting its condition and its location. If there is any doubt regarding the presence of asbestos, it must be assumed that those materials contain asbestos.
- Create an action plan to manage the risk identified and implement. This must be kept up to date.
- Provide information to any person who may disturb the asbestos to prevent the risk of injury.
- If an effective management strategy is established, drastic measures such as removing the asbestos are not always required, which can reduce the potential costs incurred.
How we can help
If you are looking to sell or lease your commercial property, or looking to purchase or rent a commercial property, we will check that the ‘duty holder’ has complied with the Asbestos Regulations by ensuring that an asbestos survey has or will be carried out. The survey can then be relied on when carrying out any works to the property and will ensure that all parties are complying with the Control of Asbestos Regulations 2012.
For further information on asbestos health and safety visit www.hse.gov.uk/asbestos
Contact Lucy Benton (01539 761741 / lbenton@templeheelis.co.uk) or Yasmin Blamire (01539 761744 / yblamire@templeheelis.co.uk) to discuss your commercial property.