Dec 15, 2020

What Should a Landlord do About Asbestos?

Asbestos is mostly a problem in older properties, usually those built pre: 1980, but it may also be present in homes built or refurbished pre: 2000. It was commonly used as a building material between the 1950s and 1980s, and if you invest in an older property – which many landlords do because they tend to be cheaper – you could unknowingly be exposing your tenants to asbestos.

What is Asbestos?

Asbestos is an umbrella term for six naturally occurring silicate minerals. Viewed under a microscope, they look like tiny fibres. These fibres are not dangerous until they are released into the air and subsequently breathed in. Nothing happens immediately, but in time, the presence of asbestos fibres in the lungs can lead to serious lung disease and cancer. It’s basically a ticking timebomb, which is why industrial workers are only now seeing the ill-effects of exposure to asbestos 20+ years after they left their workplace.

Where is Asbestos Found?

Finding asbestos is like embarking on a potentially fatal game of hide and seek. There are any number of places where asbestos may be lurking, including:

Insulation panels used as fire-proofing material in partition walls, soffits under the roof, above ceilings, behind fuse boxes, and in airing cupboards
Artex textured ceiling coatings
Pipe lagging in the attic and airing cupboard
Cement panels and roof in a garage
Roofing felt in outbuildings and sheds

This is not an exhaustive list; asbestos was so commonly used it could be present anywhere in an older property that hasn’t been refurbished in 20+ years.

Asbestos Surveys

The only way to know for sure whether a building contains asbestos is to have a professional asbestos survey carried out by a suitably qualified expert.

Management surveys are visual inspections of the building to ascertain where asbestos may be present. The aim of the survey is to locate and monitor any asbestos or asbestos-containing materials. If the asbestos is deteriorating in any way, it can then be dealt with.

Management surveys are not usually necessary for domestic buildings but may be required in communal hallways and corridors in HMOs or blocks of flats.

A refurbishment and demolition survey is recommended if you are planning a major refurb of an older rental property and you suspect asbestos might be present. It’s also recommended if the property has an older concrete panel garage. This is a more intrusive survey and extensive samples will be taken to test for the presence of asbestos.

The UK Accreditation Service can help you find a suitably qualified asbestos surveyor if you need advice on whether a survey is recommended or an actual survey.

Note: asbestos surveys are a legal requirement for non-domestic properties built prior to 2000. This will be applicable to commercial landlords.

When is Asbestos a Problem?

Asbestos is not an issue unless it is disturbed in some way, for example, if it’s drilled into, sanded, or chopped in half. When this happens, asbestos fibres are released, hence why it is often called the ‘silent killer’. Unless precautions are taken, exposure to asbestos can lead to serious health problems.

A Landlord’s Legal Responsibilities for Dealing With Asbestos

The law is clear on a landlord’s responsibilities with regard to asbestos.

Control of Asbestos Regulations 2006

According to the Control of Asbestos Regulations 2006, Reg. 4, landlords must take certain steps to minimise their tenant’s risk of exposure to asbestos.

1 (a) 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 thereto or egress therefrom; [4-1(a)]

8 Where the assessment shows that asbestos is or is liable to be present in any part of the premises the dutyholder shall ensure that—

(a)a determination of the risk from that asbestos is made;

(b)a written plan identifying those parts of the premises concerned is prepared; and

(c)the measures which are to be taken for managing the risk are specified in the written plan.

Landlords of non-domestic properties, such as commercial or industrial properties, are also covered by the legislation. In addition, ‘common’ areas of certain properties, such as larger houses converted into flats, are included, such as gardens, hallways, lifts, etc. Shared bathrooms and kitchens in HMOs are also classed as ‘common’ areas.

Landlord and Tenant Act 1985

The Landlord and Tenant Act 1985 states a landlord is obliged to maintain the structure and exterior of a property; this includes a shared party wall in a terraced or semi-detached property. If asbestos is present in the roof or some other part of the building structure and is not maintained, the tenant has the right to sue the landlord for breach of contract.

Housing Act 2004

Local authorities can take action against landlords under the Housing Act 2004. Asbestos is classed as a hazard under the Housing Health and Safety Rating System (HHSRS); click here to read the guidance for private landlords.

If asbestos exists in the property, the HHSRS includes a prescribed course of action, which includes identifying the hazard, assessing the extent of the damage and risks the asbestos poses, and how vulnerable it is to damage.

If a landlord fails to take appropriate action, the local authority is given powers under the Housing Act 2004, Part 1. It can serve an Improvement Notice, Hazard Awareness Notice, and even a Demolition Order in severe cases.

Homes (Fitness for Human Habitation) Act 2018

The Homes (Fitness for Human Habitation) Act received Royal Assent in 2018. The act requires homes in the private rental sector are ‘in repair’ and ‘fit for human habitation’. Asbestos is listed as something that could lead to a property being classed as ‘unfit for human habitation’ if it is found to be defective.

The Environmental Protection Act 1990

Under the Environmental Protection Act 1990, the presence of asbestos in a rental property could be classed as a statutory nuisance. If a tenant reports the presence of asbestos to the local authority, they have an obligation to investigate. If an environmental health inspector decides the asbestos is prejudicial to health, they can serve an abatement order forcing the landlord to deal with the ‘nuisance’. If the landlord ignores the order, he can be prosecuted in criminal proceedings and the court can force him to comply with the order or instruct the local authority to carry out the work – at the landlord’s expense.

Tenants can also bypass the local authority and take action against a landlord directly, by filing a complaint at their local magistrate’s court. Tenants can also lodge a complaint with the Health and Safety Executive (HSE), which will investigate on their behalf.

Dealing with a Defective Property

Self-build landlords are liable under the Defective Premises Act 1972. If you built the property, you must ensure there are no major defects, which include asbestos. If a tenant is reasonably affected by such defects, they can sue for compensation under tort law. The court can then order the landlord to carry out any work required to rectify the problem.

Former tenants who buy their property from the landlord can also take action against the landlord. This is applicable to social landlords. Claims can be difficult to prove in the case of older properties.

In all cases, if asbestos is present in one of your properties, follow the prescribed course of action in the HHSRS. Ignoring the presence of asbestos is not a solution.

Asbestos Checklist

The Health and Safety Executive (HSE) has a useful checklist for dealing with asbestos.

Verify asbestos is present in the property – assume a material is asbestos unless proven otherwise
Have an asbestos survey carried out, taking samples where appropriate
Assess what condition the asbestos is in
Make a written record of where the asbestos is located and its condition
Carry out a risk assessment based on the current condition of the asbestos and how likely it is to be damaged/disturbed
Make a plan of action
Take action where appropriate
Keep your plan up to date

Note that all asbestos surveys and sampling should be done by licenced professionals.

Dealing with Asbestos

The plan for dealing with asbestos will depend on its current condition.

If a survey reveals the asbestos is sound and best left undisturbed, a landlord has no legal obligation to act. Many tenants will be unhappy about the idea of asbestos in their home and it may be prudent to have the material removed.

Asbestos is an emotive subject. Some tenants will not be averse to complaining to the local housing department, even if it’s been proven by a professional survey that the presence of asbestos is not a threat to their health.

If asbestos is present (or potentially present) in the property, it’s vital that contractors are informed before they do any refurbishment work on the property.

While asbestos in good condition can be left alone but monitored, it must be encapsulated if it shows evidence of minor damage. Monitor the asbestos closely for signs of any further damage and again, inform any contractor that does work on the property.

Asbestos in poor condition or in a location that’s likely to be disturbed must be removed as soon as possible. This is not a job that landlords can do themselves – a specialist contractor must be hired to do the removal work and dispose of the material safely. This ensures you and your tenants are not put at risk by escaping fibres.

Rehousing a Tenant During Asbestos Repair Work

Whether a landlord is legally obliged to rehouse the tenant during asbestos repair work will depend on the nature of the work being done.

For minor repairs where the asbestos is being contained rather than removed, it won’t be necessary for the tenant to be rehoused, as the material is not being disturbed and therefore no dust will be created.

If the asbestos is being removed, the tenant will need to move out temporarily, as there is a risk dust will be created during the removal process. A landlord is under no legal obligation to rehouse the tenant during the removal work, but you should do so if they have nowhere to go, e.g. family willing to offer them a place to stay. Refusing to help a tenant when the issue is not their fault will only lead to a loss of faith and almost certainly future problems.

The local authority can rehouse a tenant during asbestos removal work if the presence of asbestos on the property has been classed as a statutory nuisance under the Environmental Protection Act 1990. If it takes this step, the court can order the landlord to reimburse the local authority for the cost of temporary housing, which is likely to be a lot more than it would have cost the landlord directly.

In summary, asbestos should not be ignored. Always consider that asbestos might be present when you invest in an older property. If you spot any suspicious materials when viewing the property or if a survey flags it up, have an asbestos survey done to verify the extent of the problem.

An initial survey is relatively inexpensive, and it will give you peace of mind. Just make sure you hire an accredited asbestos survey company.

Have you had any experience of asbestos in your rental properties? Did you need to have the offending material removed? Let us know by reaching out on Twitter or Facebook.