The Control of Asbestos Regulations 2012 (SI12/632) (CAR2012) impose a statutory obligation on those who own, occupy or have a repair obligation for commercial property (non-domestic premises) to ensure that those premises have been properly surveyed for the presence of asbestos and that any necessary management plan has been prepared.

Failure to comply with the CAR 2012 is a criminal offence, punishable by an unlimited fine or imprisonment.

The main thrust of the Regulations is to impose a duty to manage asbestos risk in commercial premises.

Who is the duty holder for a commercial property?

The obligation is imposed on the ‘duty holder’, being any person who has control of non-domestic premises, the means of access to them or who has an obligation in relation to the maintenance or repair of such premises. There may therefore be more than one duty holder. Whilst primary responsibility may rest with the occupying tenant (where they occupy whole) the owner will still remain liable.

For example:

• a freehold owner/occupier of non-domestic property
• any tenant or occupier of the property who has a repair liability by virtue of such occupation
• a freehold owner who holds the property as an investment but does not occupy it will still be responsible if the property is vacant or if only parts of the property are let out – it will retain responsibility for any common parts
• where a tenant of whole underlets the whole or parts of its property it will also continue to be a duty holder.

Their relative contributions are determined by the nature and extent of their maintenance and repair obligations.

The duty to manage asbestos can be broken down into 3 functions:

1. a duty to assess whether asbestos is present in the premises and record the conclusions of such assessment;
2. a duty to determine the risk from any asbestos identified and prepare a written plan to manage such risk (for example monitoring the condition of the asbestos, removing the asbestos); and
3. a duty to ensure that all people carrying out works to the property are given the relevant information in relation to the location and condition of such asbestos.

On a sale of commercial property or the grant of a lease, a property owner or occupier should be able to produce an Asbestos Report and show details of any works undertaken in accordance with the recommendations of such report and any works relating to the removal of asbestos.

Where a property was built after the year 2000 no asbestos should have been used in its construction and therefore no report will be required.

Notwithstanding that this would amount to a breach of the Regulations, it may be that the seller/landlord does not have an Asbestos Report. Whilst there is no legal obligation on the seller/landlord to supply an Asbestos Report the purchaser/tenant will become the duty holder on completion and may also have an obligation as an employer to its employees and others working in the property carrying out works/alterations to ensure that they are safeguarded from the associated health risks from asbestos containing materials. It is entirely reasonable that they will want to have all information in relation to the presence of asbestos before the sale/lease is completed.

It is therefore advisable, if you are planning to sell or let out a commercial property, that you ensure that you have an up to date Asbestos Report and management plan or that you commission one as soon as possible. These can be carried out at a relatively low cost and can usually be produced within one or two weeks. The production of such reports will be particularly relevant where the purchaser is acquiring the property by way of bank finance. Although the lender will not be directly responsible under the Regulations (unless it becomes a mortgagee in possession) it will want to know in advance of any risks associated with the presence of asbestos, not least because this may affect its valuation.

Be prepared! – The production of an asbestos report and management plan at an early stage in the transaction will not only help to ensure a speedy conclusion to the transaction but will also ensure compliance with the Regulations.

If you have any questions or require further information, please contact Ian Hylton, Moorcrofts Commercial Property Partner at: ian.hylton@moorcrofts.com or +44 1628 470015