Asbestos - Who is responsible?

The government plans to introduce new responsibilities for landlords and occupiers, aimed at reducing the risk of exposure to deadly asbestos dust, which is hidden in at least 80,000 UK buildings.

Fines, civil law suits and even imprisonment may be imposed for non-compliance.

As many millions of pounds will need to be spent, landlords will want to know:

• Who is responsible for managing asbestos - landlord or occupier?
• Is there tax relief?

WHO IS RESPONSIBLE?
Based on the Health & Safety Executive’s Consultation Draft, in respect of The Control of Asbestos at Work Regulations 2002, the general rule is:

• those who are in control of the premises will have a duty to manage;
• those with an interest in the property will have a duty to co-operate.

Duty to Manage
This includes the responsibility to survey properties and maintain records of the location of any asbestos, and to remove it if necessary.

Duty to Co-operate
This involves taking the necessary measures to enable those with the duty to manage to meet the requirements of the Regulations.

Single-let Properties
Where the tenant is the only occupier of a property and the landlord has retained no responsibility for any parts including the structure foundations or external areas, the duty to manage is clearly on the tenant. However, the landlord has a duty to co-operate and would have to reveal to the tenant any information or documentation which the tenant would require in order to fulfil their obligation.

Multi-let Properties
The general rule is that the duty to manage rests with the party who has the responsibility or control of the maintenance and repair of each part of the building. This will depend on the wording of the lease. Tenants will usually be responsible for their own demised area and landlords will be responsible for all common parts and non-demised areas, which may include the structure and external parts of the property.

Where repairs are carried out by managing agents, it may be their responsibility for the duty to manage. In this situation, the tenant would need to reveal to the landlord their findings in respect of their survey and vice-versa.

TAX RELIEF
Until recently, it has been assumed that tax relief would not be made available to contaminated buildings. However, the Inland Revenue has now confirmed that the removal or treatment of asbestos in buildings will qualify for Contaminated Land Tax Relief.

Landlords will now be able to claim up to 150% of the cost of removing asbestos against their tax bills. However, they will need proof that:

• the property was contaminated when it was acquired;
• the cost of cleaning up the contamination was incurred after May 2001.