CAWR comes into force on 21st May 2004."Duty holders" will be required to control risks associated with asbestos containing materials. The Health and Safety Executive will enforce the regulations and can impose sanctions on duty holders who do not comply.

Who is the duty holder?

The duty holder is the person who is in control of maintenance or repair activities under the terms of a lease or management agreement. Therefore, the duty holder can be a landlord or a tenant.

• Tenants
  A sole tenant under a fully repairing and insuring lease will be the duty holder and therefore responsible for compliance with the regulations.
  
  
• Landlord
  A freeholder landlord will usually have few responsibilities in respect of CAWR, although a lease could say otherwise e.g. the freeholder could retain responsibility for maintenance of a rooftop
  
  
• Freeholder
  If the property is not let to a tenant, the freehold owner will have to comply with the regulations.

Co- operation

Landlords of multi - let properties will usually be the duty holder respect of common parts and any areas which the Landlord has kept as his responsibility e.g. the exterior structure.

Tenants will also be duty holders if responsible for internal maintenance.

The extent of the duty depends upon the lease terms.

Where there are a number of duty holders, they must co-operate with each other. In practical terms managing agents will be best placed to liaise with the different duty holders.

What steps should the duty holders be taking?

The aim of the regulations is not to enforce removal of all asbestos from buildings. Where the asbestos is in good condition or has been treated to stop the release of fibres, removal will generally be unnecessary.

• Short-term
  Before any maintenance/refurbishment is done, check whether asbestos containing materials are likely to be disturbed.
  
  
• Long-term
  Formulate an asbestos management strategy.
  
  Consider:
  
  Who will prepare the management policy?
  Who will enforce it?
  Who will finance it?
  Who will undertake the survey?
  How will the information be recorded?

Remember: the duty holder needs to keep an up-to-date register of the location and condition of any asbestos and provide this information to anyone liable to come into contact with asbestos containing materials.

Service charges

Compliance will invariably involve cost. The liability and recoverability of expenditure will depend upon the precise wording of the lease. In most cases, however, the Lease will provide for the landlord to recover from its tenants the cost of complying with statutory requirements. Under the new regulations these would include the cost of inspecting the building and assessing and managing any identified risks. If remedial works are needed to manage the risk properly e.g. removal of asbestos, these costs would also be recoverable. NB For costs to be recoverable, remedial work must be that needed to comply with and not exceed statutory requirements.

If you would like further advice about CAWR, or any other matter raised in this paper, please get in touch with your usual contact at plainlaw or Philip Horn on 01865 240202 or e-mail him at philip.horn@plainlaw.co.uk.
This paper is written to provide you with general information is not intended to offer professional advice. It is recommended that you seek specific professional advice before taking any action.

© Copyright plainlaw 2004

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