Asbestos – is it the responsibility of your Landlord?

What is Asbestos?

Asbestos is a set of six naturally occurring silicate minerals and was commonly used in buildings. Asbestos fibres were woven into fabrics or mixed in cement, plastic and other materials to make them stronger. This was profitable for business but highly toxic.

Where can it be found?

It has been widely used in housing construction since approximately the 1950’s and up until the mid-1980’s, and as a result many homes contain asbestos based materials. The Health and Safety Executive shows where you may find asbestos in your home in this diagram.

Do properties still have asbestos?

Asbestos was banned in 1999 due to the risks involved in its use. When materials that contain asbestos are disturbed or damaged fibres are released into the air which, when inhaled, can cause serious diseases. The diseases include mesothelioma, asbestos-related lung cancer and asbestosis. The common areas we are told about include vinyl floor tiles, roofing felt, gutters pipe lagging, loose fill insulation and textured decorative coating such as artex.

What if the landlord wants to do works to the property that has asbestos?

The safest way to do works to a property depending on the works anticipated would be for either a Management Survey or a Refurbishment and Demolition Survey to be carried out first. The Asbestos Surveyor should be asked to confirm whether the proposed works can cause a release of potential asbestos in the property and if so what precautionary measures should be taken.

Is asbestos disrepair?

In spite of its potential health risks, asbestos is not something that would count as disrepair in your property. Its presence in a property does not come under a Landlord’s repair obligation pursuant to section 11 Landlord and Tenant Act 1985. This is because any removal of the asbestos would be an improvement to the property.

In addition, The Control of Asbestos Regulation 2012 do not apply to domestic properties. Under regulations Landlords are only obligated to prevent exposure to asbestos to the ‘common parts’ of domestic premises where there are multiple occupants, such as the entrance lobby, stairs, lifts, roof spaces, store rooms and communal outbuildings.

What can the tenant do?

In the event a Landlord knowingly exposes a tenant(s) to asbestos fibres in the air, they will be guilty of the tort of negligence. Following this, in circumstances where a tenant were to develop a disease, they would be able to bring a personal injury claim against their Landlord. It usually takes at least ten years from exposure to asbestos for any condition to develop. If you have any concerns you should first contact your GP to investigate any symptoms and diagnose your condition. A tenant cannot bring a claim just because they have been exposed, there must be a diagnosis of an asbestos related illness.

What should you do if you have concerns?

In circumstances where the asbestos based materials are undisturbed and are in good condition, it is advisable to leave them where they are. It is important to check the items from time to time just to make sure they remain in a good condition and have not started to disintegrate. If you are concerned about asbestos in your property you should contain your local Environmental Health Team who will be able to carry out an assessment of any risk to you.
If there are items containing asbestos that are slightly damaged you should not seek to repair them yourself unless you have the necessary training. Where asbestos containing items are to be removed, this should only be done by a licensed contractor.

Further protection for tenants?

The Fitness for Habitation Bill had its second reading on Friday 19th January 2018 and passed its’ second reading.

The purpose of the Bill is to amend the Landlord and Tenant Act 1985 to place a duty on Landlords to ensure that their properties are fit for habitation when let and remain so during the course of the tenancy.

A full copy of the Bill can be found here.

The leading change is proposed to s.8 of The Landlord and Tenant Act 1985 is that any lease or tenancy agreement less than 7 years:

“8 Fitness for human habitation of dwellings in England

(1) In a lease to which this section applies of a dwelling in England (see section 8A), there is implied a covenant by the lessor that the dwelling—

(a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and

(b) will remain fit for human habitation during the term of the lease.”

The Bill also proposes to amend Section 10 Landlord & Tenant Act 1985, and will include any matter or matters that may amount to a Category 1 hazard under section 2 Housing Act 2004.

A Category 1 hazard is a “serious and immediate risk to a person’s health and safety”. Therefore, it is anticipated that any release of asbestos into a property would be a Category 1 hazard bringing it within proposed legislation and would make a property unfit for human habitation. Therefore, tenants would be able to bring claims against their Landlords for asbestos related issues under this proposed legislation.

If the Bill is eventually made into legislation it may provide further protection for tenants with regards to asbestos related issues. However an implied contractual term cannot apply retrospectively so the potential new law would apply to new tenancies only.