It is Regulation 4 of The Control of Asbestos Regulations 2012 (SI 2012/632) which imposes the obligations to “manage” asbestos upon dutyholders of commercial property.  But what does “manage” and “dutyholder”  mean?

Regulation 4 imposes an obligation on the “dutyholder” (who may or may not be an employer) to:

•       Determine whether asbestos is present in a building or is likely to be present.

•       Manage any asbestos that is or is likely to be present.

Dutyholders are required to:

•       Determine whether asbestos is present in the building for which they are responsible.

•       Assess the risk.

•       Have an action plan and system in place for managing the risk.

Definition of dutyholder

Simply put, a  “dutyholder” is defined as:

”(a) every person who has an obligation in relation to the maintenance or repair of non-domestic premises or any means of access or egress to or from those premises; or

(b) every person who has, to any extent, control of that part of those non-domestic premises or any means of access or egress to or from those premises.”

The broad definition of “dutyholder” includes all owners of non-domestic property, landlords, tenants, licensees, and, potentially, managing agents. For example, the following will be dutyholders, and may be so concurrently in relation to a particular property:

•       Freehold owner of non-domestic property who:

•       occupies the property;

•       leaves the property vacant;

•       leases all or part of the property to tenants; or

•       grants a licence to occupy the whole or part to one or more occupiers.

•       If a freeholder leases the whole of a property but retains some obligation to maintain or repair (for example, the structure). Where the freeholder has no obligation to maintain and repair, there will probably be some right for the freeholder to carry out maintenance work if the tenant defaults, and to forfeit the lease. It may be that the primary responsibility rests with the tenant, but the freeholder will need to recognise that it will remain a dutyholder alongside the tenant.

•       Tenant of non-domestic property who:

•       occupies the demised property;

•       leaves the demised property vacant;

•       leases all or part of the demised property to undertenants; or

•       grants a licence to occupy the whole or part of the demised premises to one or more occupiers.

•       Where a tenant underlets the whole of its property, it will still have liabilities under its own lease to maintain or repair. It may be that the primary responsibility rests with the occupying tenant, but the tenant will need to recognise that it will remain a dutyholder alongside the occupier and possibly the landlord.

•       A licensee, whether or not the licensee has a formal written occupation agreement, but only if the licensee has maintenance or repair obligations.

•       Managing agents but only if they have contracted to take over the maintenance or repair of the property.

•       Maintenance contractors who have a maintenance contract in relation to non-domestic property.

Duty to record conclusions of assessment

It is not enough to have carried out a survey, the dutyholder must also record the conclusions the survey.

Enforcement

Failure to comply with the requirements of the Asbestos Regulations is a criminal offence, and the enforcing authority can bring criminal proceedings against a duty holder.  Anyone affected (employees or others) can themselves take civil action against the duty holder.

The key thing to note is that anyone with any obligations associated with responsibilities of a commercial property can be deemed to be “dutyholders” and that the results of any survey should be retained in writing for future reference.