When is an asbestos report required for flats?

It is important that flat owners, tenants, and landlords are mindful of the importance of the presence of any asbestos in a property as well as managing any such material safely.

However, there is a lot of confusion that can understandably arise about what does, and does not, need to be done about the risk of asbestos in flats and apartment buildings.

So, we will take a closer look at when an asbestos report would be required for any flat for which you are responsible – and the related information you should know.

When and where was asbestos used in the construction of residential properties?

With the importation and use of asbestos in the UK having been banned in 1999, it might seem strange in some ways to think that this now deeply notorious, carcinogenic material was once widely used in this country as a building material.

During its peak period of use from around the 1950s until the 1980s, this naturally occurring mineral was used in building products such as roofing, flooring, walls, and insulation. The construction industry loved asbestos at a certain time, due to characteristics such as its relatively easy availability, affordability, strength, and fire resistance.

Up and down the UK, in residential, commercial, and public buildings alike, asbestos saw extensive use. However, as the 20^th century wore on, the very real health dangers that asbestos posed also became better known. Inhalation or ingestion of the substance came to be associated with often fatal diseases such as mesothelioma and asbestos-related lung cancer, eventually leading to the material’s use in the UK being banned altogether.

However, with a large proportion of the UK’s residential housing stock to this day dating from before the year 2000, there are still a lot of such buildings – including flats – that happen to contain asbestos.

So, if any flat buildings for which you are responsible were built prior to 2000, this is your first clue that you should take seriously the potential asbestos risks, as it is very likely that the material will be present in the given buildings.

What regulations govern the presence of asbestos in buildings?

We have touched on the fact that people in any of a range of capacities may enquire about what their legal responsibilities are when it comes to managing asbestos in a flat building. A landlord, for example, will not be in exactly the same position as a tenant or someone who owns the flat in which they personally live.

So, depending on what your relationship is with a given building that may or may not contain asbestos, you might not be subject to all the different regulations set out below. Nonetheless, it is good to be mindful of them, especially if your status might change in the future (for example, you may own your flat but later decide to sell or rent it out to someone else).

The Control of Asbestos Regulations 2012

Also known as CAR 2012, these regulations outline, under regulation 4, a “duty to manage” asbestos in “non-domestic premises”.

That term, “non-domestic premises” can be misleading to many flat owners, leaving them to conclude that such a “duty to manage” must not apply to a residential building such as a flat. However, CAR 2012 does apply to certain parts of residential premises. The regulations apply, for example, to the common parts of blocks of flats, such as the foyer, lifts, stairs, and boiler and plant rooms in a given building.

Furthermore, CAR 2012 applies to houses that have been converted into flats. In the case of such properties, the “duty to manage” asbestos is in place for the common parts of the building used for access, circulation, and storage; examples of such areas include the entrance lobby, staircase, and roof space.

In the event that the duty does, indeed, apply to you (a subject we will explore in further detail below), you will be required under CAR 2012 to take reasonable steps to determine whether there are asbestos-containing materials (also known as ‘ACMs’) in those common parts of the building. If asbestos does turn out to be present, you will also need to find out the specific location, amount, and condition of those materials.

Furthermore, you will need to put together a plan detailing the steps that will be taken to manage the risks the ACMs pose, and you will be expected under the law to put that plan into action.

The Landlord and Tenant Act 1985

If you are the landlord of a flat, you should be mindful of this law, which obliges you to maintain the structure and exterior of the property. In the event of asbestos being present in a part of the building structure such as the roof, the tenant will be entitled to sue you for breach of contract.

The Housing Act 2004

This law gives local authorities the right to take action against landlords. It was this Act that put in place the housing health and safety rating system, or HHSRS, which applies to residential properties in England and Wales.

Under the HHSRS, asbestos is classed as a hazard. This means that if asbestos is present in a property of which you are the landlord, a certain course of action is set out – including identification of the hazard, and assessment of the damage and risks the asbestos poses, and the level of vulnerability of that asbestos to damage.

As the landlord, you will be expected under this Act to take appropriate action. If you fail to do so, the local authority will be able to serve an Improvement Notice, Hazard Awareness Notice, or even (in severe cases) a Demolition Order.

Homes (Fitness for Human Habitation) Act 2018

You will need to be aware of this one if you are a private-sector landlord of a flat. That’s because this Act necessitates homes in this sector being “in repair” and “fit for human habitation”. Asbestos is mentioned as something that, in the event of the material being found to be defective, could cause a property to be classed as “unfit for human habitation”.

The Environmental Protection Act 1990

Did you know that the existence of asbestos in a rental property could even be classed as a statutory nuisance? Under this Act, a tenant is able to report the presence of asbestos in their building to the local authority, which will be obliged to investigate.

In the event that an environmental health inspector concludes the asbestos is prejudicial to health, they will be able to serve an abatement order, compelling the landlord to resolve the “nuisance”.

Who would be the dutyholder for a flat?

We outlined above that CAR 2012 creates a “duty to manage” asbestos for certain individuals and/or organisations.

The Health and Safety Executive (HSE) has stated that the dutyholder is either the owner of the given non-domestic premises, or the person or organisation with clear responsibility for the maintenance or repair of such premises, as might be set out through an explicit agreement such as a tenancy agreement or contract.

Is the dutyholder the flat owner/tenant or the landlord?

CAR 2012 applies an extremely broad definition of “dutyholder”, which potentially could encompass all owners, landlords, tenants, licensees, managing agents and maintenance contractors.

So, there isn’t necessarily a simple answer to the question of whether the dutyholder for any given flat or apartment would be the flat owner/tenant or the landlord. Much will depend on the nature of any agreement in place between a landlord and the tenant or leaseholder.

What are the responsibilities of the dutyholder?

Those who are, indeed, dutyholders for a given flat building will have certain responsibilities in accordance with CAR 2012. Those responsibilities will include:

• Taking reasonable steps to determine whether there are ACMs in the flat building, and if so, the location, amount, and condition of those ACMs
• Presuming materials contain asbestos unless there is strong evidence of this not being the case
• Making, and maintaining, an up-to-date record of the location and condition of the ACMs, or materials which are presumed to contain asbestos
• Assessing the risk of anyone being exposed to asbestos fibres from the identified materials
• Assembling a plan that describes in detail what actions will be taken to manage the risks these materials present
• Taking the required steps to put such plans into action
• Periodically reviewing and monitoring the plan and the arrangements to act on it, in order to keep the plan relevant and up to date
• Providing information on the materials’ location and condition to anyone who is liable to work on or disturb the materials.

When do you need an asbestos report for flats?

There are various circumstances in which, as someone with a “duty to manage” asbestos in a flat building, you might need to arrange for an asbestos survey to be carried out. These include:

• If the non-domestic property was constructed prior to 2000 – in which case, there is often a legal duty to have an asbestos survey in place. If you own and live in your own flat as a private resident, you will not be subject to this as a legal requirement. However, as we detailed in the above section on CAR 2012, you will be subject to this in certain other circumstances – for example, if you own or manage an entire flat building, and are therefore responsible for the “common parts” of the building such as the foyer, lifts, and stairs
• You are planning work on the property that exceeds the scope of the original survey. A classic example of this would be refurbishment or demolition of parts of the property – in which case, a more detailed and invasive ‘refurbishment/demolition’ survey will be needed. Again, this is a legal necessity under the asbestos regulations
• You need to put together an asbestos management plan. If you suspect or know that asbestos is present in your flat or building, but there isn’t currently a management plan in place setting out how the material is to be managed, arranging to have an asbestos survey carried out will enable you to create such a plan. This is a requirement under CAR 2012
• You need to make an annual update to your asbestos management plan. If a previous survey revealed ACMs were present in the building, you will need to have arrangements in place for regular monitoring of those materials. You should have the materials reinspected at least every 12 months, unless there is an especially low risk and you can demonstrate you have adequate controls in place for the materials
• You are looking to buy a property such as a flat or building. If the property you are interested in buying was constructed prior to the year 2000, you should ideally arrange to have an asbestos survey carried out. This is because, if you go ahead with the purchase and only later discover that ACMs are present, it will become your problem to manage
• You are looking to sell a property such as a flat or building. Although it isn’t illegal in the UK to sell a house in which asbestos is present, if you know that the property you are looking to sell does contain asbestos, you should disclose this to potential buyers
• You are entering a lease. Such an arrangement may necessitate you carrying out maintenance of the property, which would likely mean any asbestos in the property becoming your problem to manage
• You are exiting a lease. When you exit a lease, it will be expected that you will have kept the asbestos information in relation to the property up to date. A failure to comply with your statutory obligations could lead to you being charged as part of the dilapidations process
• You are moving the property into a pension. If you are interested in moving a property into some kind of pension arrangement, it may be necessary to ensure the asbestos information for the property is up to date, so that the asset can be appropriately valued
• A utility company is looking to install cables at the property. Given the effect that such work could have on the fabric of the building, it may be necessary for this to be a refurbishment/demolition survey, not just a management survey
• The local authority requires it. If you have obtained planning permission for a new development, extension, or similar work at your property, a condition of this may have been arranging to have an asbestos survey carried out. The report arising from this survey might then need to be supplied to the local authority
• You are looking to manage the risk in ‘common areas’ of a block of flats. We have touched on this aspect several times already. As a landlord of a block of flats, you will need to be especially mindful of the asbestos risks that such easily overlooked parts of the building as the stairwells, roof spaces, and even car parking areas might present.

What does an asbestos report contain?

The final report that you receive back from the surveyor should be clear, unambiguous, and readily accessible to those who are required to use it. As a minimum, the report should contain:

• The name of the surveyor
• An executive summary of the survey
• Points on the scope, date, and main findings of the surveying work
• Overall recommendations and conclusions
• Further actions
• The name of the laboratory undertaking analysis of the samples.

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

We realise that the task of managing the asbestos risk in a flat or building for which you are responsible, while ensuring legal compliance, might seem overwhelming. But if you do suspect that asbestos is present, there is one simple course of action you can take straight away: contacting our accredited asbestos consultants for help and advice.

Would you like to learn more about how Oracle Solutions can assist you, and to receive a fast and free quote for any of our asbestos services? If so, you are very welcome to reach out to us via phone or email today.