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Legal duties of landlords to deal with asbestos

This content applies to England & Wales

A landlord's legal obligations in relation to asbestos. including rehousing.

Overview of obligations

The presence of asbestos itself does not constitute disrepair. However, if it is damaged or deteriorates, and there is the risk of asbestos dust, then the landlord should act to prevent disrepair arising. There are no specific laws or regulations regarding asbestos and housing; instead, landlords' obligations arise under the legislation relating to:

  • hazards under Part 1 of the Housing Act 2004 – the Housing Health and Safety Rating System
  • statutory nuisance under the Environmental Protection Act 1990
  • implied contractual rights under the Landlord and Tenant Act 1985 and
  • defective premises under the Defective Premises Act 1972.

A landlord may also be compelled to act regardless of any legal obligation.

Housing Act 2004

Under the Housing Act 2004 local authorities have a duty to keep housing conditions in their area under review, with a view to taking any action necessary under the provisions of Part 1 of the Act.[1] Where appropriate, they must inspect any residential premises to determine whether hazards exist.[2] Hazards are classified as either Category 1 or 2. If a Category 1 hazard exists the local authority must take the appropriate enforcement action.[3] The Housing Health and Safety Rating System is the prescribed means for identifying whether Category 1 or Category 2 hazards exist. [4] Asbestos (and man-made mineral fibre (MMF)) is one of the 29 hazards categorised under the Housing Health and Safety Rating System.

The Housing Health and Safety Rating System Operating Guidance says that an assessment should include identifying any asbestos present in the property, assessing the vulnerability of the asbestos to damage, and the extent of any current damage and possible fibre release. If present, the type of asbestos should also be identified. Sampling may be necessary to confirm the presence of asbestos and the type.[5]

The powers available to local housing authorities under Part 1 of the Housing Act 2004 to secure remedies are:

  • Prohibition Order
  • Improvement Notice
  • Hazard Awareness Notice
  • Demolition Order
  • Clearance Areas.

See the section on Powers and duties of enforcement for details of these remedies.

Statutory nuisance

The presence of damaged asbestos in a dwelling could be considered to make the premises a statutory nuisance under the Environmental Protection Act 1990, in that such premises would be prejudicial to health.[6] Local authorities have a duty to detect and investigate any complaint of statutory nuisance.[7]

Where satisfied that a statutory nuisance exists, the local authority shall serve an Abatement Notice.[8] This notice is usually served on the person responsible for the premises (eg the landlord) and orders that person to abate the nuisance. If the person responsible does not comply with the notice, the local authority can take further action, such as criminal prosecution for breach of the notice, court proceedings to ensure the notice is complied with, and/or carry out the work itself.[9]

Environmental health officers at the local authority normally fulfil this duty, but an environmental health officer cannot serve a notice if the landlord is the local authority. In this situation, and also if any tenant wants to take her/his own action, s/he can initiate criminal proceedings by complaining to the magistrates' court,[10] or s/he can approach the Health and Safety Executive.

For more information about statutory nuisance, see the page on the Environmental Protection Act.

Section 11 of the Landlord and Tenant Act 1985

Under section 11 of the Landlord and Tenant Act 1985 it is an implied contractual right that the landlord, whether public or private, must keep in repair the structure and exterior of the property. Asbestos in an external wall or the roof will therefore be part of the structure or exterior. A party wall – 'a material or significant element in the overall construction of the property' – is also part of the structure.[11] If the landlord is in breach of its obligations under section 11, then the tenant can sue for breach of contract and seek an order for specific performance to have the required work carried out.

For more information about taking action under section 11, see Contractual rights.

Defective premises

If the landlord is the builder of the property, s/he has a duty to ensure the property is not defective.[12] This is not the case if the landlord did not build the property, although the landlord still has a duty of care to tenants and others who might reasonably be affected by defects if there is a breach of repairing obligations. [13] Breach of these duties is a 'tort' (a civil wrong), for which a tenant can sue the landlord for compensation and seek an order to have the required work carried out, usually under the Defective Premises Act 1972.

A former tenant who has purchased her/his property from the local authority or a registered social landlord may be able to take action against the local authority, the registered social landlord, or the building contractor, if s/he can show that the property was not built properly.[14] However, this is likely to be difficult to prove, particularly with regard to older properties, constructed before the builder could reasonable have foreseen the dangers that asbestos could pose.

The owner-occupier must generally take any action within six years of the date when the work was finished.[15] However, if the action includes a claim for compensation for personal injury or illness, the owner-occupier must take action within three years from the date when 'the cause of action accrued' or from the time when the occupier first became aware of the defect that caused the illness.

It is important to note that the local authority or registered social landlord was not obliged to tell the occupier at the time of purchase about the asbestos because, under the right to buy and right to acquire schemes, local authorities and registered social landlords are only obliged to inform prospective purchasers of structural defects[16] and asbestos is not a structural defect.

Asbestos that is no risk to health

Asbestos is an emotive subject. Understandably, many occupiers are not willing to live with a substance that could cause death even if in the distant future. Even if it poses no risk to health (and while in a sound condition it is better and safer left undisturbed) and the landlord is not legally obliged to act on it, many occupiers want asbestos to be dealt with so that it can never pose a risk.

An occupier, or a group of occupiers such as a tenants' association, may be able to compel a landlord to take action about the presence of asbestos. The use of the local media may help to persuade landlords to take action. If the landlord is the local authority, then an occupier, or a group of occupiers, may be able to raise the matter with local councillors or at a council meeting as a way of applying pressure on the authority.

Rehousing during work dealing with asbestos

A tenant does not have the automatic legal right to be rehoused while repair work is being done. However, if the repair work takes the form of removal of asbestos, and there is therefore the attendant risk of the creation of asbestos dust, it would be difficult for a landlord to justify not rehousing tenants temporarily or permanently. However, if the repair work consists only of sealing the asbestos, this argument is not as persuasive because such work should not create asbestos dust.

If the asbestos is a statutory nuisance and the occupier has to find temporary accommodation her/himself, s/he can take action against the landlord by making a complaint to the magistrates' court.[17] If the magistrates' court finds that the landlord has failed to abate the nuisance, it can order that the landlord pays compensation to the court for the cost of the temporary housing. If the tenant is a tenant of a registered social landlord or a private landlord – but not of the local authority – the environmental health department can take this action on behalf of the landlord.

For more information about rehousing during repair work, see the page on Local authority duty to provide rehousing during repair work.

[1] s.3 Housing Act 2004.

[2] s.4 Housing Act 2004.

[3] s.5 Housing Act 2004.

[4] Housing Health and Safety Rating System (England) Regulations 2005 SI 2005/3208.

[5] Housing Health and Safety Rating System: Operating Guidance, ODPM, 2006.

[6] s.79(1)(a) Environmental Protection Act 1990.

[7] s.79(1) Environmental Protection Act 1990.

[8] s.80(1) Environmental Protection Act 1990.

[9] s.80-81 Environmental Protection Act 1990.

[10] s.82 Environmental Protection Act 1990.

[11] Irvine v Moran (1991) 24 HLR 1.

[12] s.1 Defective Premises Act 1972.

[13] s.4 Defective Premises Act 1972.

[14] s.1 Defective Premises Act 1972.

[15] s.2 Limitation Act 1980.

[16] s.125(4A) Housing Act 1985.

[17] s.82 Environmental Protection Act 1990.

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