Part 2: A duty to manage asbestos in buildings

In effect the 'dutyholder' could be the occupier of the building, the landlord, the sub-lessor, the managing agent or the tenant. In most cases this would be determined by any contracts or tenancy agreements covering the fabric of the building and maintenance activities carried out.

For example, an owner may rent or lease out workplace premises under agreements where the tenant is responsible for all alterations, maintenance and repairs in the premises, making the occupier the dutyholder.

On the other hand the owner of the non-domestic premises may be responsible for maintenance and repairs, or may have control over access by maintenance workers into the building. Here the owner must carry out the work required by regulation 4.

Co-operation needed

Of course tenancy agreements or contracts are not always as clear-cut, for example the property owner may be responsible for repairs and maintenance to the main structure and common parts of the building, whereas the occupant may be responsible for the internal parts. Also, there are multi-tenancy buildings to consider.

In these circumstances responsibility is shared, with the regulation including a 'duty to cooperate'.

The Health and Safety Executive (HSE) Approved Code of Practice (ACOP) covering regulation 4 states: "It will be for each party to decide how they are going to comply with the regulation but it may be more practical for one party to take the lead in carrying out the action required in co-operation with the others.

"This could be the owner, managing agent or the employer who occupies the largest part of the premises. But each party must ensure that their duties under regulation 4 are carried out."

While the duty to manage asbestos in buildings applies to common parts of premises, including housing developments and blocks of flats, it does not place any direct duties on landlords in respect of individual houses or flats.

However, landlords do have to meet the requirements of the Defective Premises Act 1972 in England and Wales or the Civic Government (Scotland) Act 1982 in Scotland. These place duties on landlords to take reasonable care to see that tenants and other people are safe from personal injury or disease caused by a defect in the state of the premises.

Further complications

Regulation 4 makes it clear that if the terms of a tenancy are altered substantially, or if the building is vacated, the owner or leaseholder must ensure that all relevant information is passed to any new occupier.

A further difficulty arises where no obligation to maintain a property exists, such as an unoccupied property. Here, regulation 4 places the duty on the person "in control of the premises".

Finally, regulation 4 states that "every person shall cooperate with the dutyholder so far as is necessary to enable the dutyholder to comply with his duties under this regulation.

This means that others who are not dutyholders, but have information on the premises - such as building surveyors or architects with plans showing the whereabouts of asbestos - would be expected to make this information available to the dutyholder at a "justifiable and reasonable" cost.