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New ‘duty holder’ responsibility for asbestos management

15 June 2012

Anyone who is responsible for the common areas of a residential building now has a ‘duty to manage’ asbestos which may influence your decision about whether to buy a particular property in the future or to transfer control to leaseholders.

Recent changes introduced by the Control of Asbestos Regulations 2012 mean many landlords and leaseholders will now have a ‘duty to manage’ asbestos under the new rules with serious legal repercussions if they do not follow them.

The new guidance affects anyone who is responsible for maintenance and repairs in a building which may contain asbestos. While it is certainly very likely that many people are yet to realise that new regulations have been published, what you have to be clear about is whether you are indeed the duty holder and what steps you have to follow.

You are the duty holder if:

  • You own the building
  • You are responsible through a contract or tenancy agreement
  • You have control of the building but no formal contract or agreement or
  • In a multi-occupancy building, you are the owner and have taken responsibility for maintenance and repairs for the whole building.

It isn’t just commercial buildings that are affected by the changes, it is:

  • All non domestic buildings, whatever the type of business
  • The common areas of domestic buildings, eg halls, stairwells, lift shafts, roof spaces

It is also worth noting that someone who isn’t the dutyholder but who has information about the building, must also cooperate with the dutyholder so for example a leaseholder must allow access to the property to people if they have been appointed to carry out an inspection.

Responsibilities if you are the duty holder:

Firstly you should establish whether asbestos is present in the building and this includes inspecting all areas of the building for example a roof voids or lift shaft which are normally out of bounds. If you cannot access an area you should presume it does contain asbestos. Also inspect paperwork relating to the construction or building work carried out to the property if available to try and determine the type of asbestos which was used.

If the property was built before 2000 it probably does have some asbestos in it. If not, asbestos is unlikely to be present so no further action needs to be taken at this stage other than to make a record to state this is the case and why.

The second stage if asbestos is found or suspected is to assess the condition of the asbestos or what might be considered to be asbestos and if it is likely to release fibres into the air.

It you suspect it is in poor condition you should contact an expert who may arrange to repair, seal or remove the asbestos.

An expert is someone who is suitably trained to identify asbestos and will be able to get the material analysed. You may also need to appoint someone to carry out a survey the whole building. Samples should only be taken by an experienced contractor and you should never break or damage any material you suspect contains asbestos.

If it is found to be asbestos you should keep a written record or register which documents where and when it was found and it’s condition and type.

Finally you will need to decide how to act on the findings. This could include appointing a specialist contractor and providing them with your record or register to advise you how to act and they will carry out a risk assessment about the potential risks of removing it. This will take into account how much there is, how easy it is to get to, the effect on people living in the property while it is removed.

The other options are to repair it if it is damaged or to leave it in place. Whichever route you choose this should be recorded and kept. The areas should also be labelled to warn contractors about the dangers if any future work is going to be undertaken on the property and any future building contracts should include the details of your records.

If left in place, the asbestos will need to be inspected every 6-12 months. Failure to comply with the rules could mean prosecution under health and safety legislation which can lead to a fine or imprisonment.

Whilst it may seem onerous to comply with this new duty to manage, it is something which should not be taken lightly and specialist advice should be sought, especially if you are now dealing with asbestos for the first time.

This article is not intended to be a full summary of the law and advice should be sought on all issues.

For further information regarding this issue contact Albie Passmore at Adams & Remers.


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