Since 1999, it has been illegal to use asbestos in the construction or refurbishment of any building. Prior to this, it was regularly used and as such, it is still present in many properties today. 

Control of Asbestos Regulations 2012

The Control of Asbestos Regulations 2012 (CAR 2012) are in place to manage and control the use, removal and management of asbestos. Penalties for failing to comply with CAR 2012 include an unlimited fine, up to two years imprisonment and civil action. Consequently, it is important that property owners and occupiers are aware of their responsibilities and ensure that they comply with the regulations. 

Regulation 4 of CAR 2012 imposes a duty on the ‘duty holder’ of non-domestic premises (i.e. commercial property) to determine if asbestos is present (or likely to be present) and if so, to manage the risk from asbestos. 

Who is a duty holder?

A duty holder includes any person who has a repairing obligation (whether by way of contract or tenancy) in relation to the property. In the event that there is no contract or tenancy, this includes any person who has control of, or has any means of access to that part of the property. This definition is very wide and can therefore include landlords, tenants and freehold owners of the property. 

When determining who the duty holder is, this usually depends on what is included in the Lease. Usually the tenant is responsible for the maintenance and repair of the property and as such would be the duty holder. However, the landlord may also have an obligation for maintenance and repair to the common parts or to the external/structural part of the property, meaning they would also be the duty holder. 

If there is more than one duty holder the contribution is calculated in accordance with the nature and extent of each of the duty holder’s obligations.

It is also important to note that even if the regulations do not impose an obligation, there is still a duty to cooperate with anyone who does have an obligation under the regulations. 

How to manage asbestos, if present

The duty holder must ensure that a sufficient assessment is carried out to determine whether asbestos is present at the property (or is likely to be). When carrying out the assessment, the areas of the property which are reasonably accessible must be inspected and the building plans, the age of the property and any other relevant information must be considered. 

If asbestos is present, the duty holder must prepare a plan which deals with the location and condition of the asbestos and it must set out what can be done to manage the risk. This must be kept up-to-date and be provided to anyone carrying out any works to the property (together with any other relevant information). 

Important points for Landlords and Tenants

The landlord may be able to recover any costs incurred in complying with the regulations by way of a service charge (if the lease provides for this). 

It is also important for the landlord to note that if the tenant does not complete necessary works required in accordance with the regulations, the landlord must step in and complete them. It is likely that the lease will provide that the landlord can recover any costs incurred from the tenant in completing these works. 

At the end of the term of the lease, the landlord will take back the responsibility of ensuring that the regulations are complied with. 

Essentially, it is vital that both owners and occupiers of commercial premises are aware of their obligations under the regulations as they are strictly enforced. Please contact our Commercial Property department on 01483 521597 or if you have any queries or require any assistance. 

Although every effort has been made to ensure that the information provided in this article is accurate and correct, the information provided does not constitute any form of advice. Please note: this article only applies to England and Wales as property in Scotland and Northern Ireland is subject to different rules.

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