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Posted By paul debney i have been asked advice from a friend that works for a charity that are about to vacate a premises. the leasing company has asked that before the building is passed back they want an asbestos survey carried out.(amongst other things) the charities contract says that they will look after the maintenance of the building. the charity have leased the building for the last 3 years. nobody now works at the premises at all. i think that the leasing company are trying to pull a fast one in getting a type 2 survey done by the charity(even though they are just asking for a asbestos survey to be carried out). do the charity have to legally carry out this asbestos survey? also has anybody got a template for a type 1 asbestos survey that i can use on this building and similar buildings this charity uses. please email me at the charitys premises as follows office@birminghamcitymission.co.uk
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Posted By Heather Aston
Paul
The requirement to carry out a survey and produce a risk assessment and action plan under the Asbestos at Work Regs became law last May. If no survey/risk assessment was done by then, someone was in breach of their legal duties.
Exactly who is the duty holder where a building is leased depends on the exact terms of the lease contract. In this case it is important that you look at the exact wording. However if the charity had maintenance responsibility, I would think it quite possible that they have been in breach of this requirement for some time.
I would think that if that's the case, the lease company would be within their rights to require this as part of the lease surrender. After all the responsibility may then revert back to them and why should they pay for it if the tenant should have done so a year ago?
Exactly what type of survey would be appropriate depends on the type, structure and history of the building. I'm not an expert on asbestos surveys, but I'm sure one will be along in a minute.
Heather
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Posted By Chas
Not knowing the terms of your lease etc it is difficult to give a definative answer. However the CAW Reg 4 duty is to manage the asbestos in a property, not a specific duty to survey.
You could argue that if you had a suitable management plan in place to deal with asbestos issues then a survey may not be necessary.
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Posted By Debbie Spowart
We have a similar problem and due to the wording of our lease (as we have just found out after long conversations with our solicitor) we have full landlord responsibilities including maintenance and repair.
We accepted that we had to do a plan to manage the risk from ACM's, as its our employees who occupy the premises, but to identify any ACM's in the first instance means
we have to pay to have a full survey done and the owner of the property gets a full report. It does seem unfair that we are going to pay out for his long term benefit because if and when we vacate the premises, we've done the work for him.
Ensure that the wording on any futures leases is what you want as sometimes we learn valubale lessons from expensive oversights.
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Posted By Andy23 Paul I work for a company who specialise asbestos surveys and we had a case like this just yesterday! A company was moving out of a premise and had to have a survey done due to the current regs! Through cases we have dealt with it sounds like the charity are the duty holder as they have said they will look after the maintenance of the building! Details of the regulations are on our website www.environmentalessentials.co.uk
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Posted By Robert K Lewis
Debbie
I would look again at this as the duty to manage does not mean that the owner gets the report per se unless you agree to pass it over. Any work you do whilst you manage the building may well need to be recorded in your management plan and the building H&S files. The report is part of the management plan.
If you leave the building you are required to pass back only the H&S file to the owner. The building however must be in the agreed state of repair as stated in the schedules of dilapidations attached to the lease. His knowledge of the building will I think need to be no greater than it was at first lease agreement
Bob
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Posted By Ken Taylor
In order to discharge the duty to manage asbestos at work, I would expect the charity, if they were the duty holders, to at least have carried out a Type 1 survey - unless there was a defensible reason to conclude that no asbestos was present (eg because of the nature or age of the building). Whilst it would be reasonable to transfer this and other information about the current safety of the building upon relinquishing it, I'm not aware of a duty in law to do so unless the information is within a H&S file produced under the CDM Regs or there is a contract between the parties requiring this.
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Posted By trevor
Paul
One thing to bear in mind is ,if you are going to have a type 1 survey done. This survey has no samples taken and surveyor must make presumption of crocidolite unless absolutely certain. This may then bring a bill for cost's for management. If you have a type 2 survey this will provide definate answers. And possibaly no need for duty to manage. Remember a bad survey is worse than not carrying out a survey.l
regards Trevor
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Posted By Robert K Lewis
Trevor
I would hesitate greatly to suggest a type 2 eliminates potentially the need to manage. Only a type 3 should give us confidence to work with a great degree of certainty. After all it is the only one that needs to penetrate the fabric of the structure.
I still hold that where an owner is being intransigent there is no requirement in law to hand over reports undertaken to allow the tenant to manage the building. Obviously mediation is the best solution for all ultimately.
Bob
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Posted By paul debney
thanks for all your responses.
looking at the building it seems that the whole of the inside of the building has been refurbished.
i have contacted the landlord to get details of building construction date and also any details of refurbishment.
no details have been forthcoming.
a type 1 survey would be relatively easy to do as the building is unoccupied and all accesible parts of the building are in very good condition.
the assessment would also be very easy to complete as nobody from the charity has access to the building therefore nobody is at risk from asbestos.
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