Asbestos - the duties of residential landlords

Clare Castillo, 4th September, 2020

In this blog post we highlight a number of important issues residential landlords need to think about in relation to their properties.

Where might asbestos be found?

Asbestos, in all its forms, has been banned in new domestic buildings since 1999. Prior to the bans, its use was widespread particularly in blocks of flats. It may therefore still be present in older buildings. Where it was installed prior to the ban, its presence is not of itself illegal.

When is it dangerous?

If the asbestos is in good condition, it should not be dangerous. However, any work on the asbestos that creates dust may lead to the potentially dangerous release fibres. Carrying out DIY work like putting up pictures or shelves or work that a plumber might carry out like fitting a boiler may disturb asbestos.

What are my obligations as a residential landlord in relation to asbestos?

There are no specific laws covering asbestos and domestic property and the existence of asbestos itself does not equate to disrepair. However, there are statutory obligations under various different laws:

section 11 Landlord and Tenant Act 1985

Section 11 implies into all residential tenancies that the landlord must keep the structure and exterior of the property in repair. If asbestos is present in the roof or an external wall it will therefore be part of the structure or exterior and will come within the landlord’s responsibility to keep in repair. Whilst its presence does not constitute disrepair in itself, the landlord will be in breach of its statutory obligations if disrepair is identified. The tenant could seek specific performance to get asbestos removed and damages for breach of contract.

Defective Premises Act 1972

Landlords hold a duty of care to make sure that tenants and visitors are safe from personal injury or disease that might reasonably be caused by defects flowing from a breach of the landlord’s repairing obligations. Tenants (or any other affected visitors) can seek compensation where there is a breach of the landlord’s duties under the DPA 1972.

Housing Act 2004 and the Housing Health and Safety Rating System (HHSRS)

Under the Housing Act 2004, local authorities have a duty to review housing condition and identify any hazards that might exist in housing. Asbestos is one of the 29 hazards set out in the HHSRS. Under the HHSRS, the authority needs to identify the location of any asbestos in the property, assess how vulnerable it is to damage and identify any current damage or potential fibre release. Where a hazard is identified, it is classified as Category 1 (being a serious and immediate risk to health or safety) or 2 (a less serious or urgent risk). The local authority must take enforcement action in relation to any Category 1 hazards.

The Control of Asbestos Regulations 2012

The duty to manage asbestos under the Control of Asbestos Regulations 2012 only applies to non-domestic property in general and certainly not to private houses. However, it will apply to domestic premises that include common areas such as stairwells in blocks of flats or houses of multiple occupation.

Environmental Protection Act 1990

If damaged asbestos is present in a residential property, it may give rise to statutory nuisance contrary to the EPA 1990. Local authorities must investigate where any complaint is made and, if they consider statutory nuisance to exist, will serve an Abatement Notice. Failure to comply could lead to criminal prosecution.

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