Criminal law regulates how and when the State is permitted to impose duties and sanctions on private persons. Civil law regulates how and when the State recognises the transactional relationships between private persons. The relationship between the two is complex and often the grist that feeds the mill of legal argument as well as lawyers coffers.

The reason for pointing this out is because the duty to manage under the Control of Asbestos Regulations 2012 has similar feet in both camps. Over the past few years, I have made a nuisance of myself with HSE’s asbestos team trying to tease out the finer points of when the duty to manage really does apply. The answer in relation to non-domestic premises often does not lie in the interpretation of the Regulations, but in understanding property concepts.

Property Law is the hardest subject to study as an undergraduate, shortly followed by Public Law, which includes regulatory law. This article will therefore not inoculate the reader against sheer confusion about where the duty really lies, but will hopefully provides some insights into this murky area.

Readers are likely to be familiar with Regulation 4 of CAR

“Duty to manage asbestos in non-domestic premises

4. (1)  In this regulation “the dutyholder” means—

(a)          every person who has, by virtue of a contract or tenancy, an obligation of any extent in relation to the maintenance or repair of non-domestic premises or any means of access or egress to or from those premises; or

(b)          in relation to any part of non-domestic premises where there is no such contract or tenancy, every person who has, to any extent, control of that part of those non-domestic premises or any means of access or egress to or from those premises,

and where there is more than one such dutyholder, the relative contribution to be made by each such person in complying with the requirements of this regulation will be determined by the nature and extent of the maintenance and repair obligation owed by that person.”

Immediately, it becomes obvious that for the purposes of paragraph a), the test is one of written or implied contractual legal obligation, as it is where there are more than one duty-holders. A tenancy is a contract, which may be a written contract or may be implied by law. I will return to this in a moment, but already it is clear that we are in civil law territory that only a lawyer is likely to be able to really fathom.

In paragraph b) by virtue of the fact that there is no written or implied contract, the test is a factual one – that of “control.”

However, that control is being exercised over “non-domestic premises.” Unhelpfully, CAR does not provide a definition. The Regulations are made under s15 of the Health and Safety at Work Act 1974, so we can then revert to the interpretation section in that Act, s53, which states:

“domestic premises” means premises occupied as a private dwelling (including any garden, yard, garage, outhouse or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling), and “non-domestic premises” shall be construed accordingly;

From this, we can divine that persons in control of premises used in common by occupants of more than one dwelling, even if part of a private dwelling, are duty-holders.

On the face of it, then why would a home-owner not be a duty-holder if they had control of a shared access which has asbestos in it? The natural interpretation of “every person who has, to any extent, control” in paragraph b) would suggest that they are the person with the responsibility. Section 53 would suggest that shared access would be non-domestic property.

However, s53 is a definition for the purposes of Part I of the Act. You have to look elsewhere in Part I of the Act to actually understand what control means. In Section 4, the definition of control is laid out.

“(4)       Any reference in this section to a person having control of any premises or matter is a reference to a person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).”

Under these terms, paragraph b) actually doesn’t mean every person, but actually every person carrying on a trade, business or other undertaking. That does not include a home owner.

You may wonder why s4 applies and why we don’t just apply the ordinary meaning of paragraph b). That would be a very good question. In traditional Public Law terms, CAR is termed subordinate legislation designed to provide for the detailed implementation of the general duties in relation to premises outlined in s4 of the Health and Safeyt at Work Acts 1974. Since the power to create CAR is outlined in section 15 of Part I of the Act and a Regulation cannot confer on the HSE a greater power than has been conferred on it by the Act, i.e. only to impose duties on those controlling a property in the context of a trade etc. So despite what the Regulations seem to say, they don’t make a residential property owner with control over a common area a duty-holder.

The extent of the confusion over this was brought into sharp contrast by the last ever Bill to receive Royal Assent by the previous Parliament. The Leasehold and Freehold Reform Act 2024 aims to address negligent, greedy or absentee landlords by making it easier for home-owners who are in leasehold properties (often blocks of flats or mixed commercial and domestic properties) to become “enfranchised” by being able to force the sale of the freehold.  The Bill was 8 years in the making, enjoyed broad cross-party support in principle and had some of the UK’s finest legal minds focused on it.

One thing that was missed was that freehold owners were always duty-holders to a greater or lesser extent by operation of the law. By eliminating the leasehold tenancy, the property would not have an asbestos duty-holder by virtue of paragraph a). If the “enfranchise” was a residential property owner only, then through the magic mix of section 4(4) and section 53, paragraph b) would not apply, freeing the “enfranchise” not only from the freehold landlord, but also the duty to manage.

If you are reading this and finding it a little confusing, you are not on your own. During the passage of the Bill, BOHS identified this as an issue that would remove potentially tens of thousands of buildings from the duty to manage. Sir Stephen Timms twice tabled an amendment to the Bill in the Commons to close this “protection gap.” Twice the Government rejected it on the advise of the HSE. In correspondence from the Department for Levelling-up etc, the position was thus summarised “There are no circumstances where the duty to manage asbestos in common areas ceases after enfranchisement.”

To date, it has not been possible to get a formal response that acknowledges that a private owner of a residential property with common parts does not have a legal duty to manage, whereas, a freeholder of a residential property with common parts does. This perhaps illustrates the complexity of the problem.

If you think domestic asbestos duties are hard, then commercial duty-holding, outside the public sector is even more nebulous.

When it comes to contracts and tenancies, English law has had just under a thousand years to tie itself in nots and just under a century to overcomplicate the Leviathan that is the Law of Property Act 1925. I blanch when I read the words in CAR, “the relative contribution to be made by each such person in complying with the requirements of this regulation will be determined by the nature and extent of the maintenance and repair obligation owed by that person.”

The draftsman would have been laughing or crying as he wrote this!

Contracts which transfer an interest in land need to be in writing. However, many tenancies are created through implication, by conduct or by statute. In those cases, it would be nearly impossible to actually determine the nature and extent of the maintenance and repair obligation. Given the enforcement of the duty to manage is through criminal regulatory sanction, it must be a defence in the case of unwritten or some automatic tenancies that the obligation is indeterminate and therefore so is the duty.

Aside from these circumstances, there are the more regular contracts for property which are, in commercial premises, most commonly leases.

Leases usually contain express provisions that determine the relative obligations for keeping the premises in a given state of repair. Longer leases,  tend to place more of that burden on the tenant. But there are more than one ways to skin the legal cat. In addition, the actual lease may hold the obligation, but it may equally be found in a license or deed of variation.

But perhaps we start with the most common form of lease. A ‘full repairing lease’  places the responsibility on the tenant to repair the whole property. Invariably this means repairing the whole of the building inside and out. However, where the lease if for part of a commercial property, the tenant is normally responsible for the inside of the building, but structure, exterior and common parts are the repair responsibility of the landlord. The duty to manage follows the  repairing duty, although that is not the end of the story.

Most leases have a Jervis v Harris clause, which means that if the tenant does not repair, then the landlord has the right to enter and repair and then charge the tenant for the work. However, in asbestos duty-holding terms this means that if there is a Jervis v Harris clause, then if the tenant does not manage the asbestos, then the landlord has has sufficient control over the property to rectify it.

However, while this is a power, this is not an obligation within the meaning of the regulations. In effect this means that a property owner can choose not to maintain or repair asbestos in its own property, even when it poses a danger to the occupants. The only way around this absurd situation is that when the landlord re-enters the property at the end of the lease, then they become a duty-holder by the operation of paragraph b), albeit fleetingly sometimes.

Even stranger, while a re-entering landlord becomes a duty-holder on re-entry, they don’t necessarily have to do anything about it. If the property is leased again with the duty to keep the property “in repair” or worse “in good repair and condition”, the terminology of typical full repairing covenants, then this extends to the tenant needing to remedying any outstanding asbestos management issues. In this case, the duty of the tenant is probably the same or more stringent in civil law as those required by CAR. As a result, the lawyers suggest that tenants undertake a thorough inspection of premises. This should logically include an asbestos survey, but seldom does.

CAR uses the verb “maintain”, in the alternative. The accepted interpretation of maintain in land law is to keep the premises in the same state as it was when the lease started. CAR in effect imposes a higher duty on the tenant than the lease imposes in this case, but in doing so may require repair work that goes beyond that envisaged or authorised by the lease. If the work on asbestos amounts to a material enhancement which would increase the letting value, this would actually constitute an “improvement” and that’s a whole other kettle of fish.

One further technical complication is that technically, the obligation to “repair” only arises when the property is a state which is more damaged and deteriorated than the known state at the point the tenancy was created and if maintenance and repair of asbestos was something that the tenant would have in contemplation at the time of taking on the lease. This could lead to all manner of bizarre consequences, not least a tenant having an obligation to keep in good repair, but not having the lawful right to actually undertake asbestos work which would amount to improvement.

While this is by no means a comprehensive review of the relevant law, it is illustrative of a few things.

First, that the legislators desire not to impose duties on home-owners and commercial property owners (most of whom lease out their buildings) means that relatively few building owners actually have a consistent duty to manage. Public bodies, by contrast do, as do tenants of commercial buildings, including the increasing number of public bodies that lease from private landlords.

Second, in order to achieve this protection of private property owners, the imposition of the duty to manage is tied to rather complex and often confounding principles of land law, which relatively few tenants would come to understand until the exit a tenancy and undertake a Schedule of Dilapidations, in which case it may be too late and they are more likely to disguise the issue.

Third, because until recently HSE guidance explicitly stated that commercial landlords did not generally have a duty to manage if they leased out on full repairing covenants, their duty to manage on reversion is probably unknown by most and this, in turn, is likely to break the chain of management of asbestos. It is probably quite convenient for a landlord not to tell the next tenant that the place has asbestos. Because of GDPR, it is unlikely that it will be feasible for one tenant to tell the next of asbestos.

While such rules subsist, the impetus for managing and removing asbestos will be limited indeed. Tenants will struggle to do just enough and landlords will have no incentive to see more done to manage the poison in their assets.