New legal obligations for residential landlords and body corporates came into effect last April as part of the Health and Safety at Work Act (HSWA). The Act applies when it comes to having any work done on a property, and includes important new regulations around asbestos safety and Removal of asbestos.
Almost one year after the HSWA became law, there is still much uncertainty among landlords as to exactly what they are accountable for and what they are required to do. Landlords and Body corporates who don’t fully understand their obligations and breach the law risk legal complications and substantial fines.
Lawyer Aaron Martin warns property owners: “Landlords need to be more vigilant about their properties and realize that asbestos is a serious health and safety issue. WorkSafe New Zealand engages with property owners to educate them about their new responsibilities, but if the regulations are neglected or breached repeatedly, prosecution will be enforced.”
It’s essential that you know and understand your responsibilities.
The Health and Safety at Work Act (HSWA) applies to all business activities. Residential rentals are considered a business, so the Act applies (section 20). Under the regulations, landlords of rental premises become a Person in Charge of a Business or Undertaking (PCBU), and must follow the laws for that role.
However, the Act applies to a residential rental property only while it is a place of work (e.g., from the time a tradesperson enters the premises to carry out repair work until the time the work finishes).
Most of the time your rental is a home, not a place of work, and in those periods there are no HSWA obligations on the landlord. But as soon as a tradesperson steps foot onto your property, it becomes regarded as a workplace and your legal obligations kick in.
Landlords and Body Corporates are responsible for ensuring the health and safety of anyone involved with or affected by work on your property (including any tenants). In the result of any incident you are liable.
This includes specific responsibilities around asbestos. Any time a tradesperson such as an electrician or a plumber enters the property to undertake work, you are responsible for any safety issues that may result from existing asbestos.
For example, what if a plumber needs to drill a new hole behind the toilet, or an electrician wants to insert a new light fixture in the ceiling? If your house was built between 1940 and 2000, there is a reasonable likelihood that this wall or this ceiling may contain asbestos. Any such activity has the potential to dislodge harmful asbestos fibres and cause serious health issues.
You cannot contract out of your obligations under the HSWA, or assume that your property manager will take on the responsibilities of the regulations. It’s up to you to establish and maintain proper oversight of any work being undertaken onsite to make sure health and safety is being maintained. If you suspect you have asbestos in your property, you must inform the property manager and follow up to ensure action is being taken on removal of asbestos.
Landlords and Body corporates need to familiarise themselves with the hazards and risks associated with their property and ensure any risks are managed effectively. Presence of asbestos poses risks for anyone undertaking work on your property. If you know, or ought reasonably to know, that there is a risk of exposure to respirable asbestos fibres on your property, you must:
1. Identify whether asbestos is present (or there are reasonable grounds to suspect asbestos is present) and, if so, where it is located and what condition it is in (reg. 10)
2. Prepare an asbestos management plan for any stable asbestos that does not need to be removed immediately (reg. 13)
3. Carry out removal of asbestos any identified harmful friable one as required.
The first step is to get your property checked for asbestos. You can arrange for a sample of material from your property to be analysed for the presence of asbestos, but you must ensure that this is done by an accredited laboratory (http://asbestosremovalnz.co.nz/asbestos-testing/).
Once asbestos in the home or workplace has been identified, you need to make sure you have investigated the risk of exposure so you can prove you have taken all reasonable steps to mitigate risk for any tradespeople and tenants.
Some asbestos materials can be simply identified and left in place if they are in a stable condition and “encapsulated”.
However, friable asbestos must be removed professionally for the safety of your tenants and any tradespeople who may enter your property. For more information on the different conditions asbestos might be in see http://asbestosremovalnz.co.nz/information/.
If the identified asbestos is stable and can be left in place, it’s your responsibility as a landlord to ensure it is maintained in a good state.
If you are going to have any work done on the property, the Health and Safety at Work Act introduces further obligations requiring that you keep a written asbestos management plan. This plan will clarify and confirm the steps you have taken to identify and mitigate the risk that the asbestos poses to any workers coming into your home.
Although theoretically you don’t need a plan for the period while your property is used only as a home, once a trades person comes onto your property to undertake work, the plan is required. WorkSafe New Zealand therefore recommends that you prepare a plan in advance so that your legal obligations are covered in the event of any work needing to be done.
The plan must include information on:
• Identification of asbestos
• Decisions and reasons for decisions about management of the risk
• Procedures for detailing incidents
• Information on any workers who carry out work involving the asbestos, including their training, roles and responsibilities, and health monitoring.
This plan must be kept up to date and reviewed. It also must be made available to anyone who may be carrying out work on your property.
An asbestos management plan also need to be put in place to cover all areas of a property where the presence of asbestos can be presumed. For example, if you have two walls that are exactly alike and wall 1 has been identified as containing asbestos, wall 2 can be presumed to contain asbestos also.
The first step in creating your management plan is to engage an asbestos removal contractors on asbestos surveying who will come into your property to record the locations of all accessible asbestos (http://asbestosremovalnz.co.nz/information/). You should add the details from this survey to your management plan to pinpoint where the asbestos is located and the condition it is currently in. WorkSafe is developing a technical bulletin which will be available in the near future to assist with this planning.
As the landlord or Body Corporate you should also add an outline to your plan of your own management measures for stable asbestos. These could be as simple as regularly painting a wall that contains stable asbestos, or reminding your tenants not to hang items (pictures or plants etc.) or drill into the wall.
If you are planning a refurbishment that involves pushing out walls, changing ceiling height, or changing room layout, the asbestos safety risks are more serious and the regulations are more stringent. In this scenario, you must get licensed professionals in to identify and complete the process of removal of asbestos before the work commences. (reg. 26)
This will require a refurbishment/demolition survey, which is a lot more intrusive than the survey required for the asbestos management plan. Refurbishment surveys involve going under lino, around windows, and behind stoves, ceilings, gib, and fascia etc. Nothing will be left to presumption.
See our detailed information on removal of asbestos: http://asbestosremovalnz.co.nz/safe-asbestos-removal/.