Under the Control of Asbestos Regulations 2012 it is a legal requirement for potential asbestos risk of exposure to be managed in all commercial properties as well as in public buildings. Prosecutions of property owners, duty holders and landlords who fail to meet their legal obligations are heard in court as regularly as are cases involving hospital trusts and schools authorities.

According to a British Lung Foundation survey, around a half of all property owners were unaware that asbestos containing materials (ACMs) were once widely used as a building material, and nearly two thirds did not feel confident they could identify the substance. The lack of asbestos awareness to the deadly health risks of mesothelioma or asbestosis diseases by breathing in airborne fibre dust particles continues to be an issue although wilful negligence is arguably, a greater factor in some cases.

Reasonable to expect asbestos present

Imports into the UK of white “chrysotile” asbestos were finally banned in 1999 and its use in the building industry began to decline from the late 1970s onwards. However, industry experts have stated that it would be reasonable to expect any property built or renovated up until the year 2000 to contain asbestos in materials such as wallboard, soffits, roofing sheets or tiles, pipe lagging, cement and textured surface coatings.

Under the Control of Asbestos Regulations 2012, when asbestos is discovered a full authorised survey/ analysis must be carried out to determine whether the condition of the asbestos requires its immediate removal, or if not disturbed or damaged, a robust control management plan is put into place.

Asbestos removal or management

In a number of cases, premises occupiers may only find out they have been at risk of potentially airborne fibre dust when asbestos-containing materials are uncovered during a refurbishment or demolition. Whenever asbestos is found there is a legal duty for those responsible for the building to carry out a survey and arrange for its authorised removal or undertake control management, awareness and training.

Responsibility for the building and ultimately, the ‘duty-holder’ for managing asbestos materials, may be either the landlord, the tenant, an appointed agent or a combination of all parties. It is their legal obligation to prevent anyone on the premises from being at risk of exposure by ensuring asbestos is both identified and steps taken to prevent its disturbance.

Who is the asbestos duty-holder?

The law will hold the asbestos duty-holder as the individual responsible for maintenance and repairs, as clearly stated in the tenancy agreement, which could include one or more of the following :

A Managing Agent: Appointed to handle all maintenance and repairs.

The Landlord: To be held responsible for asbestos management within the entire building.
The Leaseholder: Named as duty-holder in a single occupancy premises.

Where the tenancy agreement refers to a multi-occupancy building: The responsibility is divided between the Landlord and the occupying Tenant, as follows:

The Landlord: Duty-holder for the common parts of the building.
The Tenant: Responsible for their own space.

Where there is no formal tenancy agreement or the responsibility for maintenance is not stated: The duty-holder is whoever has control of a commercial property, which in most cases will be the Landlord.

The legal duty to manage asbestos also applies to non-domestic premises, which have been vacated or no longer in use. Unless maintenance and repair of the building has been contracted to an agent, the duty-holder will be the owner of the property.

Responsibilities of the asbestos duty-holder

Regulation 4 of the Control of Asbestos Regulations 2012 requires the person who is the duty holder to:

  • Take reasonable steps to find out if there are materials containing asbestos in non-domestic premises, and if discovered, the locations, the quantity and its condition.
  • Look at building plans and any other relevant information, such as builders’ invoices, which may record where asbestos was used in the construction or refurbishment of the premises.
  • Carry out a thorough inspection of the premises both inside and out to identify materials that are, or may be asbestos.
  • Consult with architects, employees or safety representatives, who may be able to provide more information and who have a duty of co-operation to make available.
  • Presume materials contain asbestos unless there is strong evidence to suggest a non-asbestos material is present.
  • Make and keep up-to-date, a record of the location and condition of the asbestos containing materials – or materials which are presumed to contain asbestos.
  • Assess the risk of anyone being exposed to fibres from the materials identified.
  • Prepare a plan that sets out in detail how the risks from these materials will be managed and take the necessary steps to put the plan into action.
  • Periodically review and monitor the plan and the arrangements to act on it so that the plan remains relevant and up-to-date.
  • Provide information on the location and condition of asbestos to anyone who is liable to work on or disturb the materials.