Recent regulations introduced by the Control of Asbestos Regulations 2012 mean that many people such as residential landlords or managing agents will now be classified as a ‘duty holder’ with a duty to manage asbestos. Serious legal repercussions will follow for those in that position who do not comply with them.

The legislation provides that a person is the duty holder if:

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

It is not just commercial buildings that are affected by the changes, it is all non domestic buildings, whatever the type of business and covers the common areas of domestic buildings, eg halls, stairwells, lift shafts, roof spaces.

What are the responsibilities of 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.

Managing agents and residential landlords may now be classified as a duty holder.’

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.

If asbestos is found or suspected the second stage is then 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.

While it may seem onerous to comply, specialist advice must be sought.’

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 will need to keep a written record or register which documents where and when it was found and its 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 and 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, details 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 now have to deal with asbestos for the first time. It is also important to review any contracts you may have which cover the management of buildings to ensure the duty to manage asbestos is now included.

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

Albie Passmore is a solicitor at Adams & Remers
www.adams-remers.co.uk
[email protected]
01273 480616.