Article - Landlord & Tenant

The Duty of the Owners of Commercial Property to Manage the Threat of Asbestos

The control of Asbestos at Work Regulations 2002 ("the Regulations") is a statutory instrument made pursuant to the Health & Safety at Work Act 1974.  They were primarily enacted to place an obligation on employers to provide adequate information, instruction and training to employees who are, or are liable, to be  exposed to asbestos in the course of their employment.  The aim of the Regulations in this regard is that of preserving the safety of employees by ensuring the adequate precautions are in place and observed.

Since 21 May 2004 the Regulations have also imposed a duty on the owners of “non-domestic premises” to manage asbestos.  The term of “non-domestic premises” is very wide and encompasses all property which is non residential.  In practice, however, the duty will fall on the owners of industrial property such as work units and other commercial premises in areas of present or past industrial activity.

The duty imposed on the owner of non-domestic premises is that of undertaking a suitable and sufficient assessment as to whether asbestos is or is liable to be present within the building.

Whilst the Regulations are silent as to the exact assessment(s) which need to be effected, they state that steps need to be taken which are “reasonable” in the situation.  Accordingly, regard can be made of the nature of the premises, its age and locality.  It is contended here, with regards to industrial property, at the very least a periodic risk Assessment Survey must be carried out.

Where asbestos is found, suitable measures must be taken to manage the risk posed.  No activity can be undertaken in the property, unless suitable safeguards are in place.

It is important to note that the owner of premises and hence the “duty holder” for the purposes of the Regulations is not necessarily the freeholder.  Where such premises are subject to a Lease, it is likely that the responsibility will fall on the Tenant as occupier.  This is because the Regulations state that the “duty holder” is any person who undertakes to repair the property by means of a contract.  It will be extremely rare for a Commercial Lease not to include such an obligation on the part of the Tenant because most leases contain a covenant by the Tenant to observe or acts of parliament relating to the premises which includes these Regulations.  Tenants considering taking a new lease should consider obtaining a survey to identify in advance whether the building has asbestos and the risk posed if so.  This can be undertaken as part of the Fire Safety and Installation checks which are usually carried out.  Certainly, enquiries should be made during the negotiation stage, as to the likelihood of the existence of asbestos.

At the negotiation stage, Tenants should be considering the potential costs of complying with the Regulations.  Ideally, a warranty should be obtained from the Landlord that the property is free from asbestos.  However, as a starting point steps should be taken to shift responsibility on to the Landlord to some degree, such as agreeing to bear the costs equally in respect of obtaining surveys and carrying out risk assessments.

Article First Published: 3 October 2004

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