Mon 17 Nov 2014

Asbestos and other property risk assessments

Due diligence enquiries on commercial property will normally include a request to see an asbestos management plan, a disabled access audit and a fire risk assessment. The answer that comes back is often either that the seller simply doesn’t have these or, if the property is an investment property which is leased, that these are the responsibility of the tenants.

So what are the duties of property owners and occupiers on these matters?

In this article, I'm focussing on the asbestos management plan and disabled access audit.

Asbestos management plan

Asbestos may be part of any building which was built or refurbished before 2000. There is a duty on those who manage non-domestic premises to be responsible for protecting people who work there (or use the buildings in other ways) from the risk of ill health that can be caused by exposure to asbestos.   The rules are set out in the Control of Asbestos Regulations 2012.  

 The regulations provide that the "duty holder" must take reasonable steps to find out if the premises contain any materials containing asbestos; the presumption is that materials contain asbestos unless there is strong evidence that they do not.  If asbestos containing materials are found, the duty holder must:

  • make a record of the location and condition of those materials;
  • assess the risk of anyone being exposed to asbestos fibres;
  • prepare and put into action a plan setting out how the risks are being managed; and  
  • periodically review and monitor the plan, to ensure that it remains relevant and up to date.

Who is the duty holder for asbestos management?

The "duty holder" is either:

  • the owner of the premises; or
  • the person who has clear responsibility for the maintenance or repair of the premises, such as a tenant who is liable in terms of its lease.  

The extent of the person's duty can depend on the nature of the agreement under which that person is occupying the premises. For a building occupied by one tenant only, it would usually be the tenant who would take on the full duty for the whole building. In a multi-occupancy building (such as an office block, shopping centre or leisure complex) the duty may be shared, with the owner being responsible for common parts and each tenant being responsible for the part that it occupies.  

If there is no agreement in place, or if the premises are unoccupied, then the duty falls on whoever has control of the premises - which more often than not will be the owner.  

Disabled access audit

Turning to the question of disabled access, the duties on this were introduced by the Disability Discrimination Act 1995. Its provisions are now contained in the Equality Act 2010 which brought together a number of pieces of legislation that covered discrimination.

Businesses have a duty to facilitate access to their premises and use of their services by disabled people.

The service provider must take reasonable steps to change any of:

  • its practice; or
  • its procedure; or
  • the physical characteristics of its building, that make it difficult for a disabled person to use the service.  

As you can see, the rules go beyond the requirement to make physical changes to a building, although that is obviously one of the main elements.  

There is no definitive guidance on what adjustments need to be made - the question is whether the service provider has taken reasonable steps. The concept of reasonableness will be open to interpretation on the basis of the circumstances of any particular case - but issues of affordability and feasibility will be key factors to be taken into account in deciding what is reasonable.  

An access audit is normally divided into two sections:

  • the identification of physical barriers that would prevent access to enable a disabled person to use the business and services; and
  • a detailed action plan to address these issues.  

It is always the service provider upon whom these duties are imposed. If the service provider does not own its property, but instead occupies it under a lease, then the service provider will need to consider whether the landlord's permission is required to any proposed changes to the premises.

 If you would like to discuss these issues further, please contact our team. 

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