Is it a legal requirement to have an asbestos survey when I’m selling a commercial property?

Given how notorious a substance asbestos is today – being associated with various frequently fatal health conditions, such as mesothelioma and asbestos-related lung cancer – it is remarkable to think that it was used widely used as a building material in the UK.

That is, of course, no longer the case, importation and use of the material itself having been banned in the UK since 1999. But prior to that date, many commercial buildings were constructed using asbestos-containing products, and to this day, asbestos continues to be present in commercial buildings up and down the UK that were constructed prior to the year 2000.

So, if you are the owner of a commercial property in which you know or suspect asbestos-containing materials (ACMs) to be present, are you legally compelled to inform any potential buyers of the building of the asbestos situation? Or could you sell the property without providing any such information?

What are the asbestos regulations relating to commercial premises?

When you are looking to ensure you safely manage asbestos in a commercial building that you are responsible for, you should mainly refer to the Control of Asbestos Regulations 2012, also known as CAR 2012.

A key element of CAR 2012 is regulation 4, which sets out a number of responsibilities that someone is required to follow if they have the “duty to manage” asbestos in a given non-domestic building.

The person with the “duty to manage” asbestos is also referred to as the “dutyholder”. The Health and Safety Executive (HSE) states that the dutyholder is the owner of the given non-domestic premises, or the person or organisation that has clear responsibility for the maintenance or repair of the particular non-domestic premises.

If you do, indeed, have the “duty to manage” asbestos in a given commercial property, you will be required under CAR 2012 to do the following:

• Take reasonable steps to determine whether there are ACMs in the commercial premises – and if so, the location, amount, and condition of those ACMs
• Presume that materials in your commercial building contain asbestos, unless there is strong evidence of this not being the case
• Make, and keep up to date, a record of the location and condition of any ACMs in your commercial premises; you are required to do the same for materials that you merely presume to contain asbestos
• Assess the risk of anyone being exposed to fibres from the materials you have identified
• Assemble a plan that outlines in detail what action will be taken to manage the risks these materials present
• Take the steps that are necessary to put the aforementioned plan into action
• Periodically review and monitor the plan, and the arrangements to act on the plan, so that you can ensure it continues to be relevant and up to date
• Provide details about the location and condition of the materials to anyone who is liable to work on or disturb them.

How do I find out if there is asbestos in a commercial property?

The short answer to this question is that, especially if the building in question dates from before the year 2000, you will need to have an asbestos survey carried out on the property.

You can arrange for this by having professional asbestos surveyors visit your premises and carefully scrutinise it for signs of materials containing asbestos.

With asbestos fibres unable to be seen by the naked eye, professional asbestos surveyors will be able to use industry-standard techniques – such as the taking of samples and subsequent analysis – to help them ascertain whether suspect materials are genuinely asbestos.

At the end of the survey process, the surveyor will compile a report outlining where asbestos is present in your commercial building, and its amount and condition. These details will allow you to formulate a plan for dealing with the asbestos that is well-tailored to the circumstances of your commercial property.

Who is responsible for asbestos in a commercial property?

We explained above how the “duty to manage” asbestos under CAR 2012 works. On the basis of this, you might have imagined that the “dutyholder” would only ever be the owner of the given non-domestic premises.

However, it is worth noting that the definition of “dutyholder” that the HSE and the regulations outline is very broad, and that there can easily be multiple dutyholders for a single property.

A relevant contract or lease may make clear who has the responsibility for maintaining and repairing the building, which would also mean this person or organisation being responsible for dealing with any asbestos on the site.

Does a seller need to provide an asbestos survey report to the buyer?

There isn’t actually any specific legal requirement for someone selling a commercial property to supply an asbestos survey and report to the buyer. However, it is a legal requirement to have an asbestos survey and management plan in place if the commercial property was constructed before the year 2000.

So, it is very possible that you might need to have an asbestos survey and management plan in place for your property anyway. This then leaves the question of whether to share this information about on-site asbestos with the prospective buyer.

Our answer to that is: yes, you should. It is only natural that when someone is seeking to purchase a commercial building, they will want to know all the essential details in relation to the property they are interested in buying. If, then, you are the owner of a commercial building and you are looking to sell it, you should supply all relevant details about the premises’ asbestos status.

Furthermore, if the would-be buyer will be using bank finance to make the purchase possible, asbestos reports will be required in order for the sale to go through. An asbestos survey, report and management plan should all be in place before the sale happens, so that there can be no doubt you have complied with your legal obligations during your time as the building’s owner.

Selling a commercial property and need an asbestos survey? Here’s what you need to do

In the event that you are looking to sell a commercial building in your ownership and you do not yet have an asbestos survey in place for it, here are the essential steps to take:

Check who is responsible for asbestos in your commercial property

As we set out above, a lease or contract – if applicable – should make clear who has responsibility for managing asbestos in the building.

Find out where the asbestos is, and what type of material it is

You cannot be sure where asbestos is or is not present in your commercial premises simply by guessing, or by trying to judge with the naked eye. This is before we even mention the safety aspects of trying to look for ACMs on your site yourself.

So, you really should be hiring a professional asbestos surveyor to carry out extensive, but safe scrutiny of your site and any materials suspected to contain asbestos.

Using an external, accredited asbestos surveyor – such as Oracle Solutions – will enable you to be confident in the quality and thoroughness of the surveying work on your property.

Undertake a risk assessment in your commercial property

Carrying out a full health and safety risk assessment in your commercial building will further enable you to identify any potential safety issues in the property, so that you can take informed action to mitigate any risks.

As stated by the HSE, it is a legal requirement for the owners of commercial property to protect people using the given building from risks such as asbestos.

This is why you will need to have a complete health and safety risk assessment carried out at the premises, so that you can identify anything that could cause injury or illness, and assess the likelihood of that risk causing harm to someone. This information will then allow you to take action to control the risk or eliminate the hazard altogether.

In the case of asbestos, your assessment of the risk should account for such factors as the type, amount, and expected level of asbestos, the controls that might already be in place to reduce the risk of someone being exposed to the substance, and what measures you have in place for the disposal of any potential waste.

CAR 2012 sets out more in-depth information on how dutyholders should be controlling the asbestos risk on their sites. Even once you have implemented actions, it will still be crucial for you to review and update the risk assessment as and when needed, and to share this with the people who need to know.

Ensure the relevant people are aware of the asbestos material

We referenced it briefly above; by “the people who need to know”, we are referring to relevant stakeholders such as any prospective buyers of the property, as well as builders and contractors if you are looking to have work carried out on the property. This is crucial because of the risk of builders and contractors disturbing any asbestos if they are not aware of it in advance.

You will also need to make available your risk assessment on-site, so having an additional copy ready is a good idea.

Decide what to do with the material

If you do discover through the above process that asbestos is present in your commercial building, HSE regulations make clear that you will need to keep any ACMs in good repair, or have them sealed or removed from the premises.

You might arrange, for example, for the spraying of any asbestos coatings, asbestos lagging, or asbestos insulation on your site, in order to encapsulate and seal the ACMs. Depending on the circumstances around your building, another possibility could be to simply have the asbestos removed altogether.

In the event that you fail to put an asbestos survey in place and do not take the necessary steps to manage the risks that ACMs pose, you could be risking a fine of up to £20,000, or imprisonment for up to 12 months. A serious breach could lead to an unlimited fine and/or imprisonment for up to two years.

So, what do you need to know and do about asbestos in your commercial property?

All the above information will have hopefully left you with a good sense of what steps you now must take in order to comply with your legal obligations in managing any asbestos in your commercial building – including if you are currently attempting to sell the property.

If you are still unsure about any actions you need to take, or if you are on the lookout for relevant asbestos services such as asbestos surveying or asbestos removal, please feel free to contact the Oracle Solutions team. You can email us, or call the Oracle team for a fast and free quote.