What should a landlord do about asbestos in rental property?

For generations, asbestos was an extremely commonly used material in UK construction, finding its way into thousands of products such as asbestos roof sheets, downpipes, gutters, wall cladding, and insulation. Although a final ban on all types of asbestos in the UK was imposed in 1999, the substance remains present in many buildings up and down the country.

Inevitably, then, great numbers of residential buildings constructed prior to the year 2000 – in other words, during the time when the fibrous silicate mineral was legal to use in the UK – also contain this now-notorious substance.

If, however, you are a landlord owning properties of this age, you may be unsure what your legal obligations are in relation to any asbestos in your buildings, or how you can best identify and manage it. Below, then, we will outline the key things you need to know.

How do I determine if there is asbestos in my rental property?

Such was the extensive use of asbestos during its peak period of popularity in the UK – particularly from around the 1950s until the 1980s – if your rental property was constructed or renovated prior to the year 2000, there will be a very strong likelihood of it containing asbestos.

There are many common materials in UK domestic properties – encompassing the likes of insulation, flooring, and roofing – that may consist of asbestos to some degree. We have written in the past here at Oracle Solutions about the variety of areas within a residential property where asbestos-containing materials (ACMs) may be especially likely to be present.

So, as a starting point when you are seeking to determine whether asbestos may exist in your rental property, you could simply walk around the inside and outside of the building, while keeping an eye out for any potentially suspicious materials. As you do – paying close attention to such areas as the fascias, soffits, pipe lagging, and any textiles such as gaskets, ropes, and blankets – you might consult our guide to what various ACMs look like.

During your walk around the building, you should take great care to avoid disturbing any suspicious materials, given the potentially severe health risks that can arise for those who inhale or ingest asbestos fibres. Nonetheless, you might keep a lookout for the likes of:

• Insulation panels above ceilings, in partition walls, in airing cupboards, and behind fuse boxes
• Pipe lagging in the attic and airing cupboard
• Artex textured ceiling coatings
• Cement panels and roofing felt in garages, sheds, and outbuildings

The above is not an exhaustive rundown of the products within a rental property that could possibly contain asbestos. Furthermore, visual inspection alone is not sufficient to “confirm” whether a particular item is an ACM.

To gain such definitive confirmation, a professional asbestos survey or sample analysis will be required. Arranging an asbestos survey will enable you to ascertain the asbestos situation in your property as a whole, instead of simply focusing on a few suspect items.

Two types of asbestos survey exist:

• A management survey, which is designed to help you manage ACMs during the normal occupation and use of your property. It will enable you to put together an asbestos register and an asbestos management plan.
• A refurbishment or demolition survey, which is aimed at locating and identifying ACMs in a property – including those hidden within the building fabric – prior to any especially disruptive structural work being carried out at the site.

What are my legal obligations as a landlord regarding asbestos?

There are various pieces of legislation in the UK that impact on landlords as far as asbestos management is concerned:

The Control of Asbestos Regulations 2012 (CAR 2012)

Regulation 4 of CAR 2012 sets out a “duty to manage” asbestos in non-domestic premises. The text of the regulation refers to dutyholders as including “every person who has, by virtue of a contract or tenancy, an obligation of any extent in relation to the maintenance or repair of non-domestic premises or any means of access or egress to or from those premises”.

The term “non-domestic premises” may cause some landlords for residential buildings to ask whether this regulation applies to them. To clarify this, the regulation does indeed apply to landlords of residential properties who are responsible for undertaking maintenance on the given building’s structure and exterior.

This is because, with contractors, tradespeople, and others likely to need to work in the building, the property will be regarded as a workplace for the purposes of CAR 2012.

The Health and Safety at Work etc Act 1974

Although this Act does not make specific mention of asbestos, it applies to all risks that workers may face, including from asbestos. It works alongside CAR 2012, and stipulates that UK employers must undertake their work in such a way that their employees will not be exposed to risks to their health and safety.

Please feel free to check out our previous blog post specifically addressing the connection between the HSWA and the management of asbestos risks.

The Defective Premises Act 1972

This Act places duties on landlords to take reasonable care to make sure tenants and visitors alike are safe from personal injury or disease arising due to a defect in the state of the property.  

The Landlord and Tenant Act 1985

According to this legislation, the landlord has an obligation to maintain a property’s structure and exterior. If asbestos exists in the roof or another part of the structure of the building and there has been a failure to maintain it to a basic standard, the tenant is entitled to take legal action against the landlord for breach of contract.

The Housing Act 2004

This legislation allows local authorities to take action against landlords if required. Asbestos is classed as a hazard under the Housing Health and Safety Rating System (HHSRS), which sets out a prescribed course of action. Such actions include identification of the hazard, as well as assessment of the extent of the damage and the risks posed by the asbestos.

In the event of the landlord failing to take appropriate action, the local authority is able to serve an Improvement Notice, a Hazard Awareness Notice, or even – in severe cases – a Demolition Order.

What should I do if asbestos is found in my rental property?

We have previously written in detail here at Oracle Solutions about what you should do if you discover asbestos (or suspected asbestos) in a property for which you are responsible.

Various measures we recommended in that article – including immediately ceasing any work being carried out in the given part of the property, and preventing anyone from entering the area until the suspect material has been properly investigated – can also be applied to management of a rental building.

As we addressed earlier in this article, it is impossible to know for sure whether a given material is asbestos purely by looking at it. So, there will inevitably be a need to arrange a professional asbestos survey or sample analysis. This will enable you to fulfil your legal obligation, under the aforementioned CAR 2012 “duty to manage” asbestos, to take reasonable steps to determine whether there are ACMs in your property.

Once the results of the asbestos survey or sample analysis are known – for example, as provided in an asbestos report – you will need to make decisions on how to deal with the material.

We have written in depth in the past about the factors that will influence your decision on whether to remove asbestos from your property, or instead to encapsulate it (in other words, sealing the surface of the ACM to prevent fibres from escaping in the future).

Another possibility for ACMs that are in good condition and in a location where future disturbance is unlikely, could be simply leaving them in place and managing them over time. If, however, the given ACM shows signs of minor damage, it will have to be encapsulated.

The removal of asbestos is typically decided on for ACMs that pose an especially severe risk – for example, because they show a high level of damage or deterioration, or because they are in a high-risk part of the property in terms of the likelihood of future disturbance. These things might not be the case for any ACMs that you find in your own rental property.

How should I communicate with tenants about asbestos?

If you find suspected ACMs in your rental property, you won’t necessarily need to let any tenant know; this will largely depend on the condition of the given materials, and the risk they are judged to present.

If, for example, any discovered ACMs are in good condition and are not in a location where they are likely to be disturbed, you won’t be legally obliged as a landlord to undertake any particular action on them, other than monitoring them over time.

Alternatively, the given ACMs may show some level of damage or deterioration, and they might be in a part of your property where future disturbance could be likely. If so, at least some form of action will be required, such as having the material encapsulated or entirely removed from the building.

If it is the latter situation you are dealing with, it will be necessary to communicate with your tenant about the situation. After all, at the very least, you will need to arrange with the tenant to access the property so that work can be carried out on the ACM.

It might, or might not, be necessary for the tenant to be rehoused while the required work on the ACM is being undertaken – so of course, your communication with them should cover this, too.

Minor repairs – involving the asbestos being contained rather than removed – won’t necessitate the tenant being rehoused, as this won’t entail the asbestos being disturbed, or asbestos dust being created. The tenant will need to move out temporarily, however, if the asbestos is being removed, as this operation presents the risk of asbestos dust being released.

As a landlord, you won’t be legally obliged to rehouse the tenant while asbestos removal work is going on at the property. Hopefully, they will have somewhere else they can stay, such as at the home of a family member or friend.

If, however, the tenant who needs to temporarily move out has nowhere to go, arranging suitable alternative accommodation for them can be a positive move to make for the sake of maintaining good relations with the tenant (after all, the asbestos situation in the property will not be their fault).

Conclusion: landlords must take asbestos risks extremely seriously

As we have covered in this article, there is wide-ranging legislation in the UK today – not to mention many practical factors, such as the potential need to arrange professional asbestos surveying, encapsulation, removal, and/or the temporary rehousing of the tenant – that will shape how you need to manage asbestos risks in your rental property. Asbestos is certainly not a risk that landlords can choose to ignore.

To request a free and fast quote for any of our industry-leading asbestos services here at Oracle Solutions, as could assist you in your efforts to manage asbestos safely and responsibly, please contact our team via phone or email today.