Asbestos - the perils and pitfalls

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It has been more than five years since the introduction of the Control of Asbestos Regulations 2012 (the Regulations) but when dealing with property transactions, we still come across many clients who are unclear about their obligations.

It has been more than five years since the introduction of the Control of Asbestos Regulations 2012 (the Regulations) but when dealing with property transactions, we still come across many clients who are unclear about their obligations. Failure to comply with the duties imposed by the Regulations can be a criminal offence and can lead to delays and additional expenses when properties are sold, mortgaged or let.

Who is the duty on?

Landowners are under a duty to identify and manage asbestos in any non-domestic property. This includes agricultural buildings as well as other commercial premises.

Owners may delegate their duty, for example to a tenant or a contractor, but the wording of the agreement to do so must very clearly pass the duty on to the other party. Even where there is clear delegation, freehold owners are likely to retain some element of the duty and will therefore be a joint duty holder along with the tenant or contractor.

Practical Problems

To comply with the regulations, duty holders need to put in place an asbestos survey and management plan for the premises. Purchasers, tenants and mortgagees are becoming more and more aware of this requirement and will request one before exchange. If you do not already have a plan in place, then you will need to produce or commission one at very short notice and we have seen this causing delays to transactions and therefore additional expenses to clients.

Easy Solution

Fortunately, complying with the Regulations doesn’t have to be expensive or difficult. If the premises are below a certain size then it is possible to produce the management plan yourself (the HSE website have a useful step by step guide for doing so).

If your premises are larger, then you should commission an asbestos survey as early as possible to ensure any future transactions are not unduly delayed.

Once you have an asbestos management plan in place for your property, then complying with the Regulations is simply a case of keeping the plan up-to-date and making sure it is immediately available to anyone who might disturb asbestos at the property, such as contractors or emergency service workers.

For more information on asbestos, visit the Health and Safety Executive website.
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