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Landlords, do your properties have asbestos?

View profile for Alexandra Savage
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Whether you are a landlord for a commercial or residential building, you will have certain responsibilities in relation to the presence of asbestos in your building. Alexandra Savage, Commercial Property Solicitor, explains more here about those obligations and the steps you should take if asbestos is discovered in your building.

What is asbestos?

Asbestos is a fibrous mineral which was added to building materials due to its strength and fire resistance from the 1950s until 1999.  Asbestos was used in anything from cement through to rope and insulation materials, and was even sprayed onto ceilings to act as fire and acoustic insulation.

What is the issue with asbestos?

Towards the late 1980s, it was realised that if asbestos fibres became airborne it could cause serious illnesses in people who had ingested the fibres, which remained lodged in their lungs. The most common illness is a cancer known as mesothelioma. It was for this reason that it became illegal for asbestos to be used in the creation of new buildings in 1999; however it is still present in many buildings today. While the material is not generally a hazard to people unless it is disturbed, it is vital that landlords are aware of the presence of the material in their buildings and that they understand the steps they should take to have the material safely, and legally, removed.

How does asbestos affect commercial landlords?

The Control of Asbestos Regulations 2012 (CAR 2012) place specific duties upon ‘duty holders’ who are usually building owners of ‘non-domestic properties’, or those responsible for maintaining the building, for example a tenant under a lease.

Regulation 4 of CAR 2012 obliges duty holders to identify any asbestos containing materials within a building and thereafter manage that risk to protect the occupiers of the building. This, in practice, means that landlords of buildings built before 2000 should have had an asbestos survey carried out to identify any asbestos containing materials, and then use that survey to keep an asbestos register and management plan for the building which is checked annually.

All landlords should also be wary if their building was built in or shortly after 2000 as although buildings after this point should not contain asbestos, some have been found to contain it due to leftover asbestos-containing stock being used in the construction process.

What about residential landlords and asbestos?

‘Non-domestic properties’ under CAR 2012 does not just mean commercial properties - it also includes common areas of residential estates. In turn, ‘common areas’ does not just refer to shared stairs, halls and landings; it also applies to the fabric of the building as a whole. So, in a building where there is more than one occupier, there are always going to be common areas and the building will therefore be subject to these regulations.

For purely residential buildings without common areas, the legislation does not specifically oblige the landlord to have an asbestos survey or management plan in place. However, if a claim was ever brought by a tenant for exposure to asbestos, the responsibility could ultimately fall on the landlord in any event due to the duty of care they owe to their tenants.

Is there any good news?

Yes - landlords can offset the cost of remediation work against their corporation tax liability if the property is owned by a limited company. There is a relief called ‘Land Remediation Relief’ which allows investors 150% of the cost of asbestos remediation works to be offset against the pre-tax profits of the company. Developers get 50% relief in the same way. Remediation costs for Japanese knotweed, contaminated land, radon gas and asbestos are all covered, provided the contamination was not caused by the landlord. This relief can be claimed retrospectively for work carried out up to 3 years ago.

For more information regarding your legal responsibilities as a landlord, please contact Alexandra on 023 9277 6561 or email alexandrasavage@warnergoodman.co.uk. Alternatively, you can find more details on the HSE website.  This article has been published as part of the latest issue of our Commercial Brief.  To receive a copy of our Commercial Brief directly, you can complete our form to subscribe, or email events@warnergoodman.co.uk

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.