Who is responsible for managing asbestos in a commercial property?
This is a question that crops up time and time again when granting leases. Tenants will usually insist on seeing an asbestos survey and landlords are keen to wash their hands of it (literally).
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.
So what does this actually mean?
Firstly, a landlord does not have to arrange an asbestos survey in order to let a property. This is a common misconception. Many tenants seem to think that this is a mandatory requirement (like an EPC) but this is simply not the case. A landlord’s only requirement is to comply with its obligations as ‘duty holder’ under the Regulations. 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 the 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 mistaken.
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. In broad terms, therefore, it 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. In the typical 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.
So, is the landlord ‘off the hook’ as soon as they grant a lease?
No, not quite. The 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.
The situation is slightly different in a multi-let building where the responsibility for maintenance of the common parts, services, external fabric and main structure of the building will generally lie with the landlord. Here, the landlord will be required under the Regulations to arrange for asbestos surveys and for copies of asbestos registers to be produced for each tenant – although a properly drafted lease will ensure that these costs are recovered from the tenants under the service charge.
Finally, it is worth remembering 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 where the landlord has passed the responsibility on to the tenant, the landlord will still have to step in and carry out work in the event of the tenant’s default – so this is always something to monitor and keep on top of.
Asbestos management is definitely something to discuss and agree from the outset of any lease.
The Regulations apply to both landlords and tenants, so it is in everybody’s interest to reach a mutual understanding.
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