Asbestos in Commercial Property Transactions

In a commercial property transaction, asbestos could be a factor. Non domestic buildings are subject to the Control of Asbestos Regulations 2012, which address the well-publicised health risk posed by asbestos in non domestic properties.

What do the Asbestos Regulations say?

The Control of Asbestos Regulations require commercial property owners or occupiers to manage asbestos risk in their non-domestic premises. The first step towards managing asbestos is to establish whether there is any asbestos risk at the particular commercial property.  The use of asbestos was banned in the UK in 1999- so it is generally accepted that any buildings constructed from 2000 onwards can be presumed not to have asbestos. However for commercial properties built before 2000 the only way to be certain is for an asbestos survey to be carried out.

Who is responsible for asbestos control?

The person liable to manage asbestos is imposed on the ‘duty holder’- which is any person who has control of the property or is responsible for maintenance or repairing obligations of the property. Many commercial property owners will be liable, but where a commercial premises has been let out the primary duty-holder will be the occupier. This is often confirmed in a commercial lease where a tenant is responsible for any statutory obligation relating to the commercial premises let to them, including managing asbestos.

What types of asbestos survey are there?

In most cases, an asbestos management survey will be commissioned. This would establish whether a non-domestic property contains asbestos (or presumed to contain asbestos) or if no asbestos is present. If asbestos is found or presumed, the survey report will also record its location and condition and include recommendations as to whether it can be managed in situ or should be removed.

If works are going to be carried out to a non-domestic property such as property development, then a more extensive and intrusive refurbishment/ demolishment survey would usually be carried out instead. This would ensure that any work is carried out safely if asbestos is identified or presumed.

How can asbestos in a commercial property be managed?

Many asbestos surveys do not require the asbestos in commercial properties to be removed, however a duty-holder is responsible for ensuring anyone at the property is protected from exposure to that asbestos.  Complying with that duty could include:

• keeping a register of any asbestos present or presumed (usually the management survey report includes asbestos registers)
• keeping a record of the condition of any asbestos present or presumed and being alert to any deterioration
• preparing and implementing a risk assessment and an asbestos management plan
• sharing the details with anyone who might need to be aware of it e.g. managing agents, employees or contractors working at the property.

What are the penalties for non-compliance?

Asbestos is a serious health risk and the penalties for non-compliance reflect that. Failure by duty-holders to comply with the asbestos regulations 2012 is a criminal offence, punishable by an unlimited fine or imprisonment.

When should a survey be obtained?

If a property owner is planning to sell or let their non-domestic premises – and it was built before 2000 – then the prospective buyer or tenant will want to know whether there is any asbestos at the property.  Some may be willing to proceed without a survey report in place, but often they will not have a choice – for example, they have a lender who requires it.  Ideally an asbestos survey report and asbestos management plan would be available to provide to any buyer or tenant at the beginning of a commercial property transaction.