Wednesday, 2 March 2016

Fire and Asbestos within Conveyancing

There seems to be a lot of uncertainty within the conveyancing community as to when and in which circumstances Fire and Asbestos Assessments should be sought.

In this article I attempt to demystify and offer some clarity.  

Fire

The Regulatory Reform (Fire Safety) Order 2005 became law in October 2006 and introduced significant change to workplace fire safety responsibilities. It also  simplified the legislative regime by bringing all fire safety legislation together into one Order. Essentially it introduced the need for employers, building owners and occupiers as 'responsible persons' to carry out, implement and maintain a fire safety risk assessment. That is someone who has been trained to do so!

A 5-step fire safety risk assessment checklist is available to help 'responsible persons' carry out and implement a risk assessment in their premises.

All non-domestic premises including the common or shared parts of blocks of flats or houses in multiple occupation are covered by the Order, and may be inspected by their local Fire and Rescue Authority. Under the Order, Fire and Rescue Authorities have a statutory duty to ensure compliance and enforce the requirements where necessary.

As well as the check-list setting out what is required within an adequate risk assessment, an on-line form is available to help check the extent to which the assessment will comply with legislation.Fire risk assessment guidance: 

What does this mean for conveyancers?

It is clear that when acting on the purchase of a leasehold property or a freehold property where there is shared land or facilities a copy of the fire assessment should always be sought. If the seller is not able to supply it the seller should be asked to obtain an assurance from the Freeholder/Management Company one will be sought and made available within a reasonable period of time.  

Health and Safety  legislation has the allowance of 'reasonable steps' being taken to comply. If there is a plan in place to assess at some stage in the future  this may help to avoid immediate enforcement action and it might therefore be wise to ask the seller to provide confirmation from the Freeholder/Management Company that there is at least a plan in place to undertake the assessment.

If the client is to acquire an interest in the Freehold/Management company then there is a need to warn the client of the risk of enforcement for so long as it takes to supply the assessment.  

Asbestos

As like the above the common areas of domestic buildings e.g. halls, stairwells, lift shafts, roof spaces give rise to a ‘duty to manage’ asbestos under the Control of Asbestos Regulations 2012.

The duty requires you to manage the risk from asbestos by:

■ finding out if there is asbestos in the premises (or assessing if ACMs are liable to be present and making a presumption that materials contain asbestos, unless you have strong evidence that they do not), its location and what condition it is in;
■ making and keeping an up-to-date record of the location and condition of the ACMs or presumed ACMs in your premises;
■ assessing the risk from the material;
■ preparing a plan that sets out in detail how you are going to manage the risk from this material;
■ taking the steps needed to put your plan into action;
■ reviewing and monitoring your plan and the arrangements made to put it in place; and
■ setting up a system for providing information on the location and condition of the material to anyone who is liable to work on or disturb it.

Essentially this means the Freeholder s legally bound to identify the presence of suspected asbestos containing materials.

What does this mean for conveyancers?

It is clear that when acting on the purchase of a leasehold property or a freehold property where there is shared land or facilities a copy of the assessment and records should be sought. If the seller is not able to supply the assessment the seller should be asked to obtain an assurance from the Freeholder/Management Company one will be sought and made available within a reasonable period of time.  The client should be warned that there is no assessment and to make the client’s surveyor aware of this and to seek advice.

If the client is to acquire an interest in the Freehold/Management company then there is a need to warn the client of the risk of enforcement for so long as it takes to supply the assessment.

Remember as a Freeholder the assessment once prepared need to be made available to all contractors (particularly electricians, gas-fitters and plumbers) carrying out work on the premises and if the assessment proves to be incorrect  the client as a Freeholder could end up in Court.  The client should be advised to get a competent gas fitter or electrician round (or even asbestos surveyor) and see if there are  suspect materials. If found the client should either get them analysed or get a full survey carried out.

Further guidance can be found here: http://www.hse.gov.uk/pubns/INDG223.pdf

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com

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