Understanding the legal obligation for statutory compliance is fundamental to implementing and maintaining safe systems to ensure building users are not caused personal injury or illness by the condition of any premises. However, legal obligation can be very confusing when it comes to dealing with domestic properties. Sebastian Mazurczak considers this issue.
The duty holder
In order to understand who is responsible for looking after domestic properties, it is necessary to understand the term “duty holder”. The term is used to describe the nominated person who has the ultimate legal obligation for maintaining safe and compliant premises. This duty holder can be a corporate body or a person, by virtue of his or her role in the company or as identified by relevant legislation. The Control of Asbestos Regulations 2012 (CAR) defines the duty holder as:
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
in relation to any part of non-domestic premises where there is no such contract or tenancy, every person who has, to any extent, control of that part of those non-domestic premises or any means of access or egress to or from those premises.
With regard to asbestos compliance, the division of responsibility between the landlord and the tenant is fairly straightforward. The extent of the legal duty is determined by the terms of the tenancy agreement or contract that applies. Contracts between the landlord and tenant could possibly have a “compliance with laws” or “statutory compliance” clause obliging the tenant to comply with all statutes, common law and other relevant codes of practice. This would absolve the landlord from any statutory compliance obligations. It would also provide the landlord with direct action against the tenant for breach of lease as a consequence of the tenant’s failure to comply.
In the absence of such contract, the responsibility steers back towards the party who has the greatest degree of control over the premises, which in most cases will be the landlord.
The only other scenario is when the landlord decides to retain full maintenance and upkeep responsibilities for the premises in which the tenant resides; this makes the landlord accountable.
CAR is directed at those who manage non-domestic premises, so domestic landlords might be confused when it comes to asbestos compliance. It is perfectly plausible that residential landlords would read these regulations and conclude that they do not need to worry about asbestos in their property.
However, two other matters need to be considered when dealing with domestic property.
Multi-residence sites, such as blocks of flats with communal areas and areas where plant and other services are in place, although non-commercial, are still regarded as workplaces. This is because contractors, tradesmen and others are likely to need access to these areas. They therefore fall under CAR and so the landlord is required to maintain the areas in a good condition and must take appropriate measures to prevent exposure to asbestos.
Any landlord of a residential property who has maintenance responsibilities for the structure and exterior of a building, eg water and gas pipes, electrical wiring, boilers and fixed heaters and water heaters for those premises, will be regarded as a duty holder. He or she would therefore be responsible for the same reason: ie that contractors, tradesmen and anybody else likely to work there and risk disturbing the asbestos needs to be informed.
Under CAR, landlords do not have a duty to manage asbestos risk in domestic premises. However, it is not that simple, as other legislative requirements do impose obligations on landlords. Also, in a broader sense, asbestos management needs to be considered.
Health and Safety at Work, etc Act 1974
This Act is more relevant in non-domestic properties. However, if the landlord employs staff to look after the domestic property and the maintenance of those premises, then the site of work becomes a workplace. As an employer, the landlord has general obligations to conduct activities in such a way that staff and tenants are not exposed to any health and safety risk from asbestos. This is especially true in the case of housing associations or council housing.
Landlord and Tenant Act 1985
Before the beginning of any tenancy, the property due to be leased must be fit for human habitation and the landlord is required to maintain basic standards. This Act places obligations on the landlord for any asbestos-containing material that is in an unsafe condition and needs to be repaired. Failure to fulfil them may mean that the property does not comply with the Act.
Defective Premises Act 1972
This Act imposes duty of care on the landlord, and requires that no-one should be at risk from property in a defective state. For example, any ACM must be in a good state of repair. This Act also prohibits landlords from contracting out their liabilities because no “compliance with laws” or “statutory compliance” clause within a lease will release them from their statutory liability.
Construction (Design and Management) Regulations 2007
These Regulations make no exclusion for small projects and so apply to all construction projects, whether they are concerned with structural alterations or fitting out. Duties are only applicable when the project is associated with a business or other undertaking. This can include local authorities, school governors, insurance companies and project originators on private finance initiative projects. It is the type of client that matters and not the type of property: Domestic dwellers that have work carried out on their own home or the home of a family member are a special case and do not have duties under the Regulations.
Although it is not a legal requirement, when taking out insurance landlords should give consideration to any terms and conditions in their contracts that nullify their insurance if they do not fully comply with health and safety legal requirements relating to their property.
Trying to identify the pieces of legislation that apply to any particular rented property can be confusing, it is much easier simply to ensure compliance with all regulations.
It is prudent for landlords to take legal advice, follow best practice for asbestos management and ensure a safe environment for tenants and workers.
Landlords should, therefore, as a minimum, carry out an initial asbestos inspection, identify any asbestos-containing material that could pose a risk and identify and inform all who are likely to disturb it; whether tradesmen, contractors, staff or tenants.