What should my landlord do about asbestos?

With the naturally occurring, but dangerous material known as asbestos having been used heavily in the UK construction industry through the bulk of the 20th century until it was banned in 1999, the notorious substance remains present in many residential properties. A significant number of those properties will be ones that, today, landlords own.

So, if you are a landlord yourself, you might be anxious to know how you can determine whether there is any asbestos in your own property. And if asbestos does turn out to be present, what steps do you need to take to manage it properly and safely?

Below, we have set out the essential elements to know.

What is asbestos?

“Asbestos” is the name given to a group of six fibrous silicate minerals – namely actinolite, amosite, anthophyllite, chrysotile, crocidolite, and tremolite asbestos. Of these, the most commonly used types of asbestos in the UK were crocidolite (“blue”), amosite (“brown”), and chrysotile (“white”) asbestos.

We say “were”, because the importation and use of asbestos in the UK was finally completely banned in 1999. But before then, the construction industry made extensive use of asbestos, thanks to qualities like its strength, heat and chemical resistance, and fireproof nature.

Today, the very name “asbestos” is synonymous with peril to human health. This is because – as became apparent over the course of the 20th century – the inhalation or ingestion of asbestos brings a long-term risk of developing serious and often fatal diseases, such as mesothelioma or lung cancer.

As a result of this, far-reaching regulations have since been put in place, to help ensure the responsible management of asbestos that remains in properties up and down the UK.

Where can asbestos be found?

Back during the time of its widespread use – and before the health impacts of breathing in or ingesting asbestos became properly known – the substance was seen as a wonderfully versatile building material.

It was therefore used in many parts of residential and commercial properties alike, including (but not necessarily limited to):

• Insulation panels in partition walls, above ceilings, in airing cupboards, in soffits under the roof, and behind fuse boxes
• Artex textured ceiling coatings
• Pipe lagging in airing cupboards and attics
• Roofing felt in sheds and outbuildings
• Cement panels and roofs in garages

Asbestos now being banned means the material should not be present in any building in the UK that was constructed from the year 2000 onwards. However, in any given property constructed prior to this date, there is a strong chance that asbestos will be present, especially if it was constructed before 1980.

What are a landlord’s legal responsibilities for dealing with asbestos?

There is various legislation and regulation in the UK that sets out what landlords are required to do in order to manage any asbestos risk in their properties. We have laid those out below.

The Control of Asbestos Regulations 2012

The Control of Asbestos Regulations 2012, or CAR 2012, superseded the previous CAR 2006 when it came into force on 6^th April 2012. There isn’t much difference between the two sets of regulations, except for some types of non-licensed work with asbestos now having additional requirements in relation to the notification of work, medical surveillance, and record-keeping.

CAR 2012 puts in place a “duty to manage” asbestos for those who are responsible for maintenance of non-domestic premises. This particular regulation applies specifically to non-domestic premises, and not to private houses. However, it does apply to domestic premises that have common areas, such as stairwells in blocks of flats or houses of multiple occupation.

Given that CAR 2012 is aimed at non-domestic premises, landlords might easily be confused as to whether it applies to them.

However, there are a few factors that change this situation. A multi-residence site such as a block of flats, with areas where plant and other services are present, is still regarded as a workplace, because contractors, tradespeople, and others are likely to need to access these areas. These areas therefore fall under CAR 2012.

Also bear in mind that if you are a landlord of a residential property with responsibility for carrying out maintenance on the building’s structure and exterior – covering areas such as water and gas pipes, boilers, and electrical wiring – you would be regarded as having a “duty to manage” asbestos in accordance with CAR 2012. The reasons for this would be the same as the above; contractors, tradespeople, and others are likely to need to work there, and will need to know about possible asbestos risks in the building.

The Landlord and Tenant Act 1985

This piece of legislation outlines that the landlord is obliged to maintain a property’s structure and exterior; this includes any shared party walls in the case of terraced or semi-detached properties.

In the event that asbestos is present within the structure of the building, and the landlord is not taking steps to maintain this, the tenant would be entitled to take legal action against the landlord for breach of contract.

The Housing Act 2004

In accordance with this Act, local authorities are able to take action against landlords. This is due to asbestos being classed as a hazard under the house health and safety rating system (HHSRS).

If you are a landlord and asbestos is present in your property, there is a prescribed course of action in the HHSRS. This includes identifying the hazard, assessing the extent of the damage and risks the asbestos presents, and considering the asbestos’s level of vulnerability to damage.

Failing to take appropriate action as a landlord means that you risk the local authority serving you an Improvement Notice, a Hazard Awareness Notice, or even – if the situation is severe – a Demolition Order.

The Homes (Fitness for Human Habitation) Act 2018

A much more recent development of relevance to landlords seeking to manage the asbestos in their properties, the Homes (Fitness for Human Habitation) Act of 2018 requires private rented homes to be “in repair” and “fit for human habitation”. Under this Act, asbestos is something that, if defective, could render a property “unfit for human habitation”.

The Environmental Protection Act 1990

There are various risks that landlords need to be aware of under the Environmental Protection Act 1990. This legislation allows for the potential classification of asbestos in a rental property as a statutory nuisance.

In the event of your tenant reporting the presence of asbestos to the local authority, they are obliged to investigate. If an environmental health inspector concludes that the asbestos is prejudicial to health, they are able to serve an abatement order, which would require you as the landlord to tackle the “nuisance”.

If you ignore such an order, you could run the risk of prosecution, with the court forcing you to comply with it. Alternatively, the court could instruct the local authority to undertake the work, which you would be required to pay for.

Dealing with asbestos in a property: what you should do

The steps that you take to deal with asbestos in your property will depend on the condition of the asbestos. You will be able to determine the condition of the asbestos by having an asbestos survey carried out on your site.

If the asbestos is in good condition

Asbestos is not believed to pose a risk to health if it is in good condition and left undisturbed. If an asbestos survey reveals this to be the case for asbestos in your building, you will not be under any legal obligation to act upon it. You will therefore be able to leave the asbestos alone and simply monitor it over time, to help ensure it does not deteriorate and pose a health risk in the future.

Some landlords, however, may decide to remove the asbestos from the property anyway if the tenant is unhappy with it being present. Ultimately, this will be your decision to make.

If the asbestos shows minor damage

In the event that the asbestos survey finds asbestos in your property that shows evidence of minor damage, you will need to arrange to have the material encapsulated. You will then be able to closely monitor the asbestos over time, so that you can decide on later action if there is evidence of further deterioration in the substance’s condition.

If the asbestos is in poor condition or likely to be disturbed

In some cases, the asbestos found in a property may be in poor condition, or it might be in a part of the property where future disturbance of the material is very likely. If this is the case in your building, you will need to arrange for the removal of the asbestos as soon as possible.

You won’t be able to undertake the asbestos removal yourself – this is a task a specialist contractor must carry out, to ensure the utmost safety when removing and disposing of the material.

Should you rehouse tenants during asbestos repair work?

There are effectively two questions to answer here: whether you would be legally obliged to rehouse the tenant while repair work is being done in the property, and whether you should rehouse the tenant anyway, even in a situation where there isn’t a legal obligation for you to do so.

If the work to be carried out will be only minor repairs whereby the asbestos is merely contained rather than removed, you won’t need to rehouse the tenant. This is because the material itself won’t be disturbed, so there won’t be a risk of dust being released into the air, with the associated danger to health that such an eventuality would bring.

If, on the other hand, you are arranging to remove the asbestos from your building, the tenant will need to temporarily move out of the property, given the risk that the removal process could pose of asbestos dust being released. In this situation, you would be under no legal obligation to rehouse the tenant while the work is going on – and ideally, the tenant would have an alternative place to stay anyway, such as the home of a friend or relative.

But in the event of your tenant not having anywhere else to go, you should take the step yourself to help rehouse them while the work is being done. After all, asbestos being present in your property from when it was built several decades ago is not the tenant’s fault. So, refusing to help the tenant in this situation would almost certainly cause damage to your relationship with them, with all the problems this could lead to in the future.

If the asbestos in your property has been classed as a statutory nuisance in accordance with the Environmental Protection Act 1990, the local authority will be able to provide the tenant with somewhere else to live during asbestos removal work. But please note that if this does happen, the court can order you as the landlord to reimburse the local authority for the cost of temporary housing. The cost in this situation will likely be much higher than would have been the case if you had simply helped the tenant directly in the first place.

Suspect the presence of asbestos? Here’s what to do next

If you know for sure that a building for which you are the landlord was constructed prior to 2000, or you are unsure when it was built, you should presume the building contains asbestos until and unless you can determine for sure that it doesn’t.

You might have further reason to suspect that asbestos is present in the property. For example, there might be records of previous asbestos work carried out in the building, or you might have spotted materials that you suspect to be asbestos.

Whatever the exact situation, if you suspect asbestos is present in the building, you should arrange to have an asbestos survey done. This will enable you to ascertain the exact nature of the issue – including the location, amount, and condition of any asbestos materials. You will then be able to use this information to make responsible decisions on how to manage the asbestos.

Here at Oracle Solutions, we are a leading accredited asbestos consultants in the UK, offering services including asbestos surveys, removal, and repair. To learn more about how we can assist you, and to receive a free and competitive quote, please don’t hesitate to call our team today or send us an email.