Hi all,

I posted a similar query regarding Fire Scotland Act, this time it concerns CAR - more specifically, who the Duty Holder is?

We have approx 10 warehouse and work/shop office buildings in various locations which we lease out under a full repair and maintenance lease. None of these have common areas and none are shared between tenants.

CAR talks about the duty holder being:-

(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 or egress to or from those premises; 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 or egress to or from those premises,

From this I have assumed the tenant is the duty holder - as they are in full control of the building in terms of maintenance and repair. Therefore, they will be responsible for assess the presence and condition of asbestos?

More worryingly, I have came across an old Type 2 survey reports for a building which indicates the presence of asbestos, some of which is in poor condition. This has never been a problem because these buildings were unoccupied however, we are about to lease these buildings out. I think, as we are in receipt of this information, that we should address any recommendations made in the survey report before the tenant moves in - i.e. remove asbestos thats in poor condition. The Facilities Manager is not so sure of this. We would, at very least, pass this information on to the tenant as we have a DoC to do so.

So, a couple of areas I need some advice on:

Is my understanding correct of who the duty holder is in Landlord/Tenant relationship.

And secondly, who is responsible for removing ACMs from these buildings where the landlord has prior knowledge of its presence?

Any help would be appreciated.

Thanks

There is no absolute requirement to remove asbestos. The duty to manage may be transferred.

Hi Ron/TSC - Thanks for your responses.

Yes I am aware that there is no absolute duty.........I was referring more to the fact that we are aware there is asbestos in poor condition which we have been advised should be removed ASAP. I should have made this clearer.

Thanks for your input

Hi Ray, presuming you are talking about the building which we know has asbestos in poor condition then yes, I agree we are ultimately responsible given that we are aware of the asbestos issues.

However, in relation to buildings which we own but have no record of surveys being carried out. Having thought about this overnight it makes more sense for the tenant to be held responsible. As I said earlier, CAR 2012 states that the 'duty holder' is responsible for assessing risk from asbestos. In this case the duty holder is "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 or egress to or from those premises". In our case, the tenant would then be responsible.

Example being, a tenant leases a warehouse over a long-term (say 15 years). They lease the building under the T & C's of full repairs and maintenance lease - i.e. have control over how the building is used, how it is maintained and by whom, and how they alter the design of its interior (albeit under approval by the landlord).

In this case it would be very difficult for a landlord to maintain any sort of register of asbestos given the tenant would be completing the maintenance of the building. Also of no real interest to him given his employees are not being directly exposed to the hazards from asbestos at the time. Of course, the lease would include a caveat to pass on information at the end of the lease.

Hi John,

Thanks for your response.

I would have agreed until I read CAR, which does seem to imply it is the responsibilty of the Dutyholder i.e. the tenant or other person under contract (potentially a landlord acting on behalf of the owner) to carry out the requirements contained with Reg 4: Duty to manage asbestos in non-domestic premises.

Where no contract exists it is every person who has control over the premises is responsible. This would apply to owner/occupiers of properties.

I admit that I too thought the landlord would have entire (or an element) responsibility but in hindsight it does make more sense that the tenant (where he is the dutyholder) carries out an assessment, where the dutyholder is 'in control' of all aspect of the tenancy/lease agreement including maintenance and repair.

If anyone else (with experience of this) can shed some light on this issues as there does seem to be a mix of understanding between those who have commented.

Thanks

Hi John,

Yes, I understand that but in our case there isnt more than one duty holder. A dutyholder must fall into the scope outlined in Reg 4,1,a or Reg 4,1,b, not both.

In relation to your point. As I see it as CAR stipulates in Reg 4 1 a) the duty holder is the tenant. If this is not applicable then Reg 4 1 b) would be applied - which I believe applies to owner/occupiers, or common areas which are maintained by landlords/owners.

We have several other buildings which I have been asked to advise. We do not have surveys for these and I will not be carrying this out for the tenants, given the terms of the lease. Should the terms change where we are made responsible for the maintenance and repair of said buildings then the DoC would pass onto me and I would be obliged to meet the requirements Reg 4,1,b.

Due to the conflicting views on this subject I have spoken to our legal team who advise on our leases (I didnt expect a speedy response or else I would have ask them beforehand). They have taken advice from specialists who agree with me, that tenants with full repairs and maintenance leases have entire responsibility for their statutory obligations including Fire Regs and CAR. However, they advised that where we do have information on the presence and condition of ACMs we must pass this information on to the tenant and include this within the scope of the lease agreement.

Until I hear/see evidence which conflicts with this legal arguement then I am happy to go with their advice.

'However, in relation to buildings which we own but have no record of surveys being carried out. Having thought about this overnight it makes more sense for the tenant to be held responsible.'

Indeed it would from your perspective, but if I was the prospective tenant I would not be happy that no asbestos survey had been undertaken and that I was responsible for the condition of any asbestos in the building. I would also be giving s3 of HSWA and the OLA some close scrutiny - good luck.

Sorry for another personal view (but that’s what occurs in a court of law for the most part or should I say personal interpretation (Obiter dictum)).

Interesting thread looking at the Regs and the Acts (HSAWA and OLA) and remembering my law training from a long time ago an Act always has precedence being primary legislation and regulations are always read in conjunction with any related Acts (ummm). If you rent a property or anything else out it has to be fit for purpose. We could argue about Service Level Agreements (SLA) and that you may allow a rent reduction if the tenant is liable for maintenance. If for instance you are aware of ACM and you allow a reduction in rent it would be up to you to ensure any appropriate work had been carried out to meet with the requirements of the rent reduction (SLA). The tenant would also be liable to protect their employees and others and meet their obligations under the SLA. I would hazard a guess that both parties would end up in court.

Mute point but you cannot absolve responsibility (see Pontius Pilate).

In a domestic property I would expect the landlord to be for the most part liable, there may be the odd case of a tenant affecting ACM against the will of the landlord (breach of a SLA) but it is really the realms of conjecture.

I just wanted to summarise some points.

1) This is non-domestic property.
2) I have taken legal advice regarding this and while I take all your comments on board I am stuck between a rock and a hard place with regards budgets and need to spend this wisely.
3) Yes, personal viewpoints are welcome in most instance but I am looking for legal fact in this case so that I can form a judgement based on other peoples specific experiences or legal judgement.
4) The issue is two-fold as I have already explained. For the buildings we have surveys for, this information will be passed onto the Tenant. For those buildings which we do not have surveys the building will be rented as seen. All lease agreements will include references to applicable statutory obligations where the tenant is responsible.

Again, thanks for your input.

OK, here goes.............feel free to comment on this.

There is no statutory definition, 1957 Act states in consequence of a person’s occupation or control. Who ever has control over the land is an occupier.

Wheat v E Lacon & Co. Ltd (1966)- manager of pub was given right (by the brewery) to rent out rooms in his private quarters. When claimant slipped on an unlit staircase, court held that the manager and employer could be occupiers. In Wheat V Lacon, the licensee and brewery owner of a pub were both held to be the occupiers of a pub since, under the lease, the brewery was responsible for repairs and thus controlled the state of the premises.

Now, taking this into account - the fact that the Brewery (buildings owner) were responsible for repairs and maintenace, I can quite clearly see why they are both held responisble under OLA. However, our scenarios differs greatly as explained previously.

Your thoughts?

forgot this link it may help or just confuse http://www.pcblawyers.co...b_briefing_asbestos.html

B.Bruce

Go back to my response.

If you are in control then it is your duty

When the new lease is signed it is the duty of the new leaseholder

Your other duty is to ensure the asbestos record, such as it is, is handed to the potential signatories in time for them to consider the consequences adequately.

Your only other concern would be to know if it was safe to enter while empty and the PL consequences of that. I have been through this many times with commercial landlords and tenants depending on whom I am acting for. Do please remember the children issue if the building is empty as I well remeber an abbatoire left empty, unsecured and with fibrous asbestos insulation on all chiller and freezer rooms vulnerable to attack. Not to mention the ammonia still in the refrigeration systems. Wonderful things empty buildings:-)

Bob

Bruce

As I say - you are in control currently but not in the future hopefully