Rank: Forum user 
|
Dear all
We occupy a small shared storage area (dependant on leasehold eg responsibilities)
I have requested and received a asbestos survey from the landlord dated 13th October 2000 with reference to the Asbestos 1987 regulations!
No management plan is in place,
in brief what is legally required? From the landlord?
Correct survey?
12 month management plan?
many thanks
|
|
|
|
|
|
Rank: Super forum user 
|
Does that year 2000 survey indicate the presence of any asbestos-containing materials?
|
|
|
|
|
|
Rank: Super forum user
|
If this is an old type 1 survey IMO it should be updated to be a management survey.
|
|
|
|
|
|
Rank: Forum user
|
I agree with descarte, Management survey would cost very little for piece of mind and if the question ever came from a HSE inspector 'how are you satisfied the survey is adequate and sufficient' you'll have a lot more of a stronger standing with an up to date survey.
It is the responsibility of your landlord to ensure there is a fit for purpose survey although you still own a duty of care to any employee's using/working in the unit. I'd push for them to have one carried out preferably by a UKAS accreditation surveyor.
|
|
|
|
|
|
Rank: Super forum user 
|
As a minimum a risk assessment should be drafted and the landlord can proclaim 'presumptive' asbestos presence and a plan of how he has to manage the presence of asbestos. The landlord doesn't necessarily have to have a survey?
Unless you are planning out carry out works such as refurbishment, then a refurbishment survey is a must.
|
|
|
|
|
|
Rank: Forum user
|
HSG264 will give you the advice you need. Too many people think that because a survey has been done that they are compliant, they are not. The duty is to manage. Landlords can be tricky blighters and it all depends on the small print in the leasing agreement. The saying 'the large print giveth and the small print taketh away' springs to mind. Be dogmatic and persistent.
|
|
|
|
|
|
Rank: Super forum user
|
If you have a signed lease/rental agreement then you are fully responsible for the asbestos management in the area under your control NOT the landlord. In practical terms this means a management survey and a management plan. This is regardless of any other information given. You should really have required a decent survey etc before signing the lease.
Look at the defitions of the duty holder under CAR 2012.
Bob
|
|
|
|
|
|
Rank: Super forum user 
|
Bob, I am not sure if it quite as simple as that. The mere fact that there is a "..signed lease/rental agreement.." isn't necessarily an indication that the lessee will be the duty holder. There are different kinds of lease arrangements, including a full repairing lease in which the lessee, is likely to be the duty holder for the management duty under CAR. BUT, a lease in itself does not necessarily impart that duty; it would depend on the terms of the lease.
You are a ‘dutyholder’ if:
you own the building;
you are responsible through a contract or tenancy agreement;
you have control of the building but no formal contract or agreement; or
in a multi-occupancy building, you are the owner and have taken responsibility for maintenance and repairs for the whole building.
source http://www.hse.gov.uk/pubns/indg223.pdf
|
|
|
|
|
|
Rank: Super forum user
|
Canopener
Duty to manage asbestos in non-domestic premises
4.—(1) In this regulation “the dutyholder” means—
(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, .
and where there is more than one such dutyholder, the relative contribution to be 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.
The above about says it all in the UK at least. Landlords have only to worry about common areas ultimately. The moral is to get anything you want done by the landlord completed before signing up. I agree that an agreement might specify the landlord as responsible but most landlords I know deliberately exclude themselves.
Bob
|
|
|
|
|
|
Rank: Super forum user
|
Bob, I don't think we are miles apaprt. I read 4(1)(a) but surely this still doesn't make the tenants or lessee the duty holder UNLESS the contract extends to them an obligation for the MAINTENANCE or REPAIR? Isn't that what this section is saying?
As I said, the mere presence of a contract is NOT the deciding factor, but rather upon WHOM the contract imposes the maintenance liability. If the lessee has a full repair lease then they are the duty holder. If not, then they might well not be. Surely it would depend on the wording of the individual contract? It can't not, can it?
It appears to me that the moral is to know and understand what you're signing up for.
|
|
|
|
|
|
Rank: Super forum user
|
Canopener
Unless clear to the contrary I think 4.1 means exactly that. If you are in control of all or part of the premises then you are the duty holder for the controlled areas.
Bob
|
|
|
|
|
|
Rank: Super forum user
|
It isn't that simple Bob.
Where the lease prohibits/specifically excludes the tenant from making repair or alteration then the duty holder onus is essentially with the Landlord.
Note also the words "any extent". The 'extent' of permitted maintenance, repair or modification can vary anywhere between 0-100% for either party and therefore the "persons" accountable 'by virtue of contract or tenancy can be either or both parties.
|
|
|
|
|
|
You cannot post new topics in this forum.
You cannot reply to topics in this forum.
You cannot delete your posts in this forum.
You cannot edit your posts in this forum.
You cannot create polls in this forum.
You cannot vote in polls in this forum.