Posted By Deborah Armstrong Hi Steve As you said, you need to ascertain whose responsibility it is to "Manage" the building, i.e. who is responsible for maintenance of the building etc. You will find this information in your Rental/Leasing Contract. Regards, Debbie

Posted By Kevin West For your information this is an extract from a piece designed to answer such questions from a firm of solicitors specialising in this area. Should you wish to have access to the full version please feel free to contact me. The company with whom I am employed carry out consultancy services in health & safety and asbestos and would be happy to discuss ways in which we may be able to assist in this and other matters. Kev ........................................... Who must comply with the new duty to manage? The meaning of ‘duty holder’ (regulation 4(1)) has undergone a series of revisions during the course of the consultation process. The original consultation proposed that the duty holder be ‘the employer in control of premises which they occupy and in which persons work’. This approach was criticised because it was felt that it did not adequately deal with the many situations where the occupier of a building is not solely responsible for maintenance and repair activities nor did it address the range of relationships that exist between tenants and landlords. The approach was also criticised because it failed to place any duties on other parties who might have a significant influence on how asbestos is dealt with. During the second consultative stage the duty holder definition placed the main duty on the employer in occupation to ensure that the requirements of the regulation were carried out and introduced a duty on all ‘other parties’ who had, by virtue of any contract or tenancy, an obligation in relation to the maintenance or repair of the premises (or any means of access or egress to or from the premises) to take the necessary steps to enable the employer to meet those requirements. The extent of the duty would be determined by express or implied terms in leases or contracts between the parties. However it was felt that the revisions lacked clarity and the obligations on the other parties to ‘take the necessary steps to enable the employer to meet his requirements’ were too ‘passive’. It was also felt that there should be explicit duties on building owners. The ‘duty holder’ The meaning of duty holder was subjected to further revision to make it clear that when deciding who the duty holder was, the starting point is always to establish who has the maintenance and repair obligations under the terms of the contract or tenancy. In situations where no relevant contract or tenancy exists, it falls to any person who has control of the premises. ‘4 (1) Duty holder means: - (a) every person who has, by virtue of any 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; or (b) in relation to any part of non-domestic premises where there is no such contract or tenancy, every person who has to any extent, control of that part of those non-domestic premises or any means of access thereto or egress therefrom, and where there is more than one duty holder, the relative contribution made by each such person in complying with the requirements of this regulation will be determined by the nature and extent of the maintenance and repair obligation owed by that person.’ It should be emphasised that there may well be more than one duty holder. For instance the Tenant might be responsible for the repair and maintenance of the internal parts whilst the Landlord might be responsible for the external walls roof and common parts. This may pave the way for potential disputes between Landlords and Tenants over the interpretation and effect of repairing obligations in leases! An HSE Asbestos Policy Adviser’s expressed view is: ‘If there are grey areas in the lease where there is no clear responsibility lying with the tenant HSE is likely to require the owner to manage the risks. If a subsequent legal ruling shows that the tenant was responsible the owner would be able to recover his costs from the tenant. If the duty holder fails to carry out an assessment under Regulation 4 they would be the ones HSE would take enforcement action against. But the employer in occupation should be aware of his responsibilities under Regulation 6 of CAWR to carry out risk assessments where employees are liable to be exposed to asbestos and Regulation 10 to prevent his employees being exposed to asbestos. They would need to be careful not to do anything that might disturb the fabric of the building where no regulation 4 assessments had been done. The tenant should report problems like this to the local HSE Officer’. The duties under regulation 4 will thus rest with the person in control of the maintenance activities whether or not that person is the occupier or the Landlord, sublessor or the managing agent. In a situation where a lease or tenancy agreement indicates that the landlord will be responsible for the maintenance of the building but the landlord has entered into an arrangement with a buildings management consultant under the terms of which the buildings management consultant assumes full responsibility for the management of asbestos in the building, who will be the duty holder? Will the duty holder be the landlord or the buildings management consultant? The HSE Asbestos Policy Adviser’s view is: - ‘In the example you give the landlord remains the duty holder. They are simply employing a consultant to assist them in managing the risks from the asbestos-containing materials. The contract is not giving the consultant control of the management of building in respect of general maintenance and repairs’. The ACOP states that ‘the owner/leaseholder may pass all or some responsibilities for maintenance and repair of the premises to a managing agent. The agent would be required to carry out the actions in the same way as the owner. However, this does not necessarily mean that the owner has passed on his legal obligations to comply with the duty to manage regulation’. Where no tenancy agreement or contract exists, or where the premises are unoccupied, then the duty will fall on the person in control of the premises. An owner may lease the premises on the basis that the tenant is responsible for all alterations, maintenance and repairs in the premises. In such event the tenant will be the duty holder. Alternatively the owner may retain responsibility for maintenance and repairs in which case the owner will be the duty holder. If the premises are unoccupied, or occupied solely by the owner, again the owner will be the duty holder for the purposes of regulation 4. Again, as mentioned above, the Landlord and Tenant may well have to share the responsibility. In the majority of cases I suspect that the obligation will rest with the Tenant (in other words, the employer of the workers at the premises).

Posted By Andy Lightbody Steve As was previously stated, if you have entered into a Licence to occupy or Lease agreement with the Council or even a private owner elsewhere, you will first require to check the terms of the 'agreement' to identify the 'duty holder' under CAWR. In general terms if the lease is full repairing and insuring (FRI) and contains a Statutory Compliance clause then your company will be deemed the 'duty holder' for the demise, with the Landlord potentially the 'duty holder' for any common parts (if any). This then means that you have to fulfill the requirements of CAWR for your premises and the Landlord for the other parts. However, integration of information from both reports into a management plan for the overall premises shall provide a suitable and sufficient basis to protect all parties. Leases usually contain provision for Landlord's to have rights to request such information to show conformity. If you do not feel comfortable reviewing the lease, your legal advisor or a qualified building/general practice surveyor will be able to answer this by quickly viewing the leases if available. Regards Andy