To be or not to be?

A link to an article published by an on line publication called BIZCOMMUNITY.COM, and which deals with the Asbestos Abatement Regulations, is doing the rounds. The article states, amongst other things, the following: “… but asbestos is now outlawed and building owners have only 14 months to plan removals, including homes…”

This has created quite a stir amongst some estate agents who have asked us whether this now means that all home owners whose properties still have asbestos roofing, will now be required (as a matter of law) to remove this within the next 14 months (being the remaining time allowed for certain of the regulations to be implemented), and whether a new compliance certificate is now heading our way? The answer is a resounding no. Sadly, this article has not summarised the regulations accurately at all.

The regulations are not very clearly drafted and it is therefore hard to tell which buildings exactly the regulations apply to. The regulations are only applicable to “workplaces”, but no regard has been had to the fact that many people now work from home and many others employ domestic workers. This leaves a large question mark over the applicability of the regulations to residential properties that fall into this category. Insofar as laws are intended to be applied so as to impinge as little as possible on our freedoms, our advice would be to treat all property that is primarily residential as exempt from the regulations until there is clarity on the point.

All the regulations state (in a nutshell) is that where you do have asbestos, you need to have it looked at to determine whether it does expose anyone to a health risk – i.e. whether it has reached a stage of deterioration which requires removal, and if so, how to go about this. The bulk of the regulations are immediately applicable but right at the end, it states that regulations 3 and 22 will only come into force 18 months after publication of the regulations – on 9 May 2022.

Regulation 3 is the regulation on which a lot of the other regulations are based as it deals with the employer’s duty to identify any asbestos in the workplace. Only once the asbestos has been identified can many of the other regulations be applied. This gives us a window period expiring on 9 May 2022 to do the real work of implementing the steps required to keep us all safe from the asbestos.

The regulations are quite detailed as to how the asbestos and asbestos composite materials are to be dealt with, and they create a lot more red tape and compliance work. They deal with situations where you know you have asbestos in the workplace and then how to check whether it poses any risk; how often you much check; once you have determined that it is a hazard, how to go about removing it; how to deal with employees who are exposed to asbestos and the packaging and transport of asbestos. They also deal with 3 various types of “asbestos work” and how each one must be dealt with.

While the Regulations do not require us to have a new Certificate of Compliance for asbestos, once an owner has an inventory of any “asbestos in place” at any workplace or premises, this inventory must be provided to the new owner of the premises on transfer of ownership. This will be of special relevance to agents dealing with commercial and industrial property and will require a new clause to be added to the deed of sale along the following lines: The seller has established that the property has asbestos in place as per the inventory attached hereto and marked as Appendix “….”, as is required by section 4(7)(d) of the Asbestos Abatement Regulations published under Government Notice R1196 in GG 43893 of 10 November 2020.

Alternatively, where the Seller does not yet have a certificate: In the event that the property has parts made up of asbestos or asbestos-containing materials, the Seller undertakes to provide the Purchaser with an “inventory of asbestos in place” on registration of transfer, as required by section 4(7)(b) of the Asbestos Abatement Regulations published under Government Notice R1196 in GG 43893 of 10 November 2020.

The bottom line is that property owners with homes which do happen to have asbestos roofing for example, are not under any obligation to now suddenly start replacing their roofing within the next 14 months! At worst, these homeowners may be required to call on a qualified person to come and check on the integrity of the asbestos, if their homes are also used as a workplace. This would in any event be a wise move because if you have an old home (which will be the case if you still have asbestos), you don’t want that asbestos dust to get into the environment, as it presents a serious health hazard for every one of us.

Robert Krautkramer & Deon Welz
Miltons Matsemela

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