COLUMN: A big risk for purchasers and tenants

IT'S like a hot potato - and if not careful, you could have your fingers burnt. If you buy or lease a commercial property, then asbestos identification and management could become your problem - and compliance may be expensive.

As you know, my fictitious client, Victor Lawless, is in the process of purchasing a commercial shed, from which to operate his business. I am reviewing and advising him on the contract.

I explained to Vic the Work Health and Safety legislation requires the person "in control" of a workplace (a commercial premises) engage an appropriately qualified person (e.g. asbestos assessor) to inspect the premises and identify any asbestos. The person in control of the workplace could be the owner (landlord), tenant or both.

If asbestos is found, it must be clearly labelled and an asbestos register and management plan must be prepared and maintained.

However, it is not necessary to conduct an inspection if there are reasonable grounds to believe asbestos is not present. You could argue this if the premises was constructed after December 31, 2003 or the premises is made entirely of concrete, brick, metal and has no internal walls made of fibro, Gyprock or similar cladding.

Vic pipes up "That's stupid -wouldn't that be the seller's responsibility?"

Technically yes - at law, when selling, leasing or transferring management of a workplace with asbestos, the person needs to provide a copy of the asbestos register to the purchaser, tenant or incoming manager. If they don't then they breach the legislation and may be subject to a monetary penalty.

However, this does not actually in practice help a purchaser or lessee - as failure to comply does not have any impact on a sale contract or lease.

As a purchaser, to include a Special Condition in a Contract of Sale dealing with asbestos, for example, to the effect that if the seller does not provide appropriate register and management plan, then the buyer has a right to terminate.

Suzanne Brown is a Principal and QLS Business Law Accredited Specialist. She can be contacted on 4963 0820 or sbrown@mckayslaw.com.


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