Asbestos in Communal Areas: Duty to Manage and Surveys
The duty to manage asbestos under regulation 4 of the Control of Asbestos Regulations 2012 applies to the communal parts of a block of flats, not the inside of each flat. It sits with whoever holds the repairing obligation, usually the freeholder, RMC or RTM company, not the managing agent.
Photo: Pavel Danilyuk / Pexels
In Short
- Regulation 4 of the Control of Asbestos Regulations 2012 covers the communal parts of a block: foyers, corridors, lifts and lift shafts, staircases, roof spaces, plant rooms, gardens and outbuildings. The inside of a flat is outside it.
- The dutyholder is whoever carries the maintenance and repair obligation, usually the freeholder, the resident management company or the RTM company. Appointing a managing agent does not move the duty in law.
- Any block completed before 2000 should be presumed to contain asbestos unless there is strong evidence otherwise.
- A management survey supports normal occupation. A refurbishment and demolition survey is needed before work that disturbs the fabric in areas the management survey did not open up.
- HSE guidance says the plan, register and drawings should be reviewed at least every 12 months, with condition checks in between.
If your building has communal areas and was completed before 2000, someone has a legal duty to establish whether asbestos is present there, record what is found, and manage it. That duty sits in regulation 4 of the Control of Asbestos Regulations 2012, which came into force on 6 April 2012. It stops at the front door of each flat, and it is not discharged by handing the file to a managing agent.
Does the Duty to Manage Asbestos Apply to Blocks of Flats?
Yes, to its common parts. Regulation 4 applies to non-domestic premises, and the Health and Safety Executive’s Approved Code of Practice L143 (second edition, 2013) explains at paragraph 89 that the duty does not apply to domestic premises such as private houses, but does apply to the common parts of multi-occupancy domestic premises: purpose-built flats, or houses converted into flats.
The examples it gives are foyers, corridors, lifts and lift shafts, staircases, roof spaces, gardens, yards, outhouses and garages. Excluded is the private domestic area inside each flat. Paragraph 90 also excludes rooms within a private residence shared by more than one household, and the communal dining rooms and lounges of sheltered accommodation.
| Type of residence | Rooms or parts | Duty applies? |
|---|---|---|
| Block of flats occupied by more than one family | Individual flats | No |
| Block of flats occupied by more than one family | Common parts: foyer, lift, stairs, lobby, boiler and plant room, roof space, communal yard, garden, store rooms, bike shelter, external outbuilding | Yes |
| House converted into flats | Private rooms | No |
| House converted into flats | Common parts for access, circulation and storage, such as the entrance hall, staircase and roof space | Yes |
| Garages and parking spaces | Integral to, or linked with, a residence | No |
| Garages and parking spaces | Not allocated to any specific person, used for access and circulation | Yes |
| Flats over a shop or office, leased separately | Access and circulation areas | Yes |
| Sheltered accommodation | Common rooms such as the dining room or lounge | No |
| Sheltered accommodation | Work areas such as the kitchen, staff room or laundry | Yes |
Two things follow. The roof space and the plant room are in scope even though residents rarely enter them, because contractors do. And sheltered schemes split: the lounge is out, the staff kitchen and laundry are in.
The Regulations operate across Great Britain, so the position in Devon and Cornwall is the same as anywhere in England, Wales or Scotland. Where regulation 4 does not reach, L143 paragraph 92 notes that section 3 of the Health and Safety at Work etc. Act 1974 still applies to anyone conducting a business, including landlords of domestic premises.
Who Holds the Asbestos Duty in a Block of Flats?
The dutyholder is whoever carries the repairing obligation, usually the freeholder, the resident management company or the RTM company. Regulation 4(1) defines it in two limbs: every person who has, by virtue of a contract or tenancy, an obligation of any extent in relation to the maintenance or repair of the premises or the means of access to them; and, for any part with no such contract or tenancy, every person who has, to any extent, control of that part.
So you start with the lease. Whoever covenants to repair and maintain the structure, common parts and services is the dutyholder for those areas: usually the freeholder, a resident management company named as a party to the leases, or an RTM company that has acquired the management functions. Where there is more than one dutyholder, regulation 4(1) apportions by the nature and extent of each party’s maintenance and repair obligation.
L143 Table 6 deals with agents head on. Where an owner or leaseholder uses a managing agent, the duty stays with the owner: the agent acts on the owner’s behalf but does not assume the owner’s duties in law. Paragraph 103 generalises the point, the dutyholder’s legal responsibilities cannot be delegated, although tasks can be given to competent people. For directors of a resident management company, the board remains answerable for seeing the work done.
Regulation 4(2) runs the other way: every person must cooperate with the dutyholder so far as is necessary. L143 expects an owner with no repairing obligation to hand over what they know, and architects, surveyors or contractors involved in the building to supply information at a justifiable and reasonable cost. It does not extend to sharing the dutyholder’s costs.
Managing a block where this applies? Our team can talk it through with you.
Which Asbestos Survey Does a Block Need?
A block needs a management survey for normal occupation, and a refurbishment and demolition survey before work that disturbs the fabric where the management survey was not intrusive. HSG264 (second edition, 2012) describes both. Regulation 4(3) requires a suitable and sufficient assessment of whether asbestos is or is liable to be present, which under regulation 4(5) takes account of building plans or other relevant information and the age of the premises and includes an inspection of the reasonably accessible parts.
A management survey is the standard one. Its purpose is to locate, as far as reasonably practicable, suspect materials that could be damaged or disturbed during normal occupancy including foreseeable maintenance, and to assess their condition. It often involves minor intrusive work with simple tools. Box 4 lists the areas to reach: underfloor coverings, ceiling voids, lofts, risers, service ducts, lift shafts, basements, cellars and undercrofts. Anything not accessed must be presumed to contain asbestos, and the report must say so.
A refurbishment and demolition survey is needed before refurbishment or demolition. It is fully intrusive, with destructive inspection as necessary. Paragraph 50 carries the sentence boards most often miss: a refurbishment survey is required for all work which disturbs the fabric of the building in areas where the management survey has not been intrusive, and the decision rests with the dutyholder.
| Management survey | Refurbishment and demolition survey | |
|---|---|---|
| When it is needed | During normal occupation and use of the building | Before refurbishment or demolition, and before other work that disturbs the fabric |
| How intrusive | Often minor intrusive work; the extent depends on what is reasonably practicable | Fully intrusive, with destructive inspection as necessary |
| Occupation | The building normally stays in use | The area is vacated, and the surveyor confirms it is fit for reoccupation afterwards |
| Condition assessment | Yes, a material assessment of each material found or presumed | Not normally required, unless the gap before the work is significant, for example more than three months |
| What it feeds | The register, the risk assessment and the management plan | The plan of work for removal, and the works contract |
Where major refurbishment or final demolition is planned, regulation 7 requires the plan of work to specify, so far as is reasonably practicable, that asbestos is removed before other major works begin, unless removal would be a greater risk to employees. The survey therefore belongs before the tender, inside the specification leaseholders are consulted on.
Choosing a Surveyor
L143 paragraph 106 says you can gauge a surveyor by checking they are accredited by a recognised accreditation body as complying with BS EN ISO/IEC 17020, and that UKAS is the sole recognised accreditation body in Great Britain. Paragraph 108 states that HSE strongly recommends accredited surveyors. If yours is not accredited, paragraph 107 expects you to obtain their qualifications, their written procedures including quality control policies, and references to recent similar work.
The Register, and How the Risk Is Scored
Regulation 4(7) requires the conclusions of the assessment and every review to be recorded. L143 paragraphs 123 to 127 describe that record: a drawing marking the main features of each room and passageway, the locations, extent, condition and form of the materials, and every area not accessed, which must be assumed to contain asbestos. It should be dated, and paragraph 133 says it should stay available on site for the life of the premises.
Age does much of the work. Paragraph 118 says premises whose construction was completed before 2000 should always be presumed to contain asbestos unless there is strong evidence otherwise, and premises built after 2000 can be presumed asbestos free. It adds a caution where a new building sits on an existing basement or is linked to an adjoining structure.
The survey gives you a material assessment. HSG264 scores four parameters, product type, extent of damage or decay, surface treatment and asbestos type, each between 1 and 3, with two of them able to score nil. The total runs from 2 to 12. Materials presumed rather than sampled are scored as crocidolite unless there is strong evidence otherwise, which is one reason presumption is an expensive habit.
| Total score | Potential to release fibres if disturbed |
|---|---|
| 10 to 12 | High |
| 7 to 9 | Medium |
| 5 to 6 | Low |
| 4 or less | Very low |
That is only half the picture. Paragraph 128 warns that the highest scoring material is not automatically the first to deal with. Priority comes from a separate priority assessment covering location, extent, how the area is used, occupancy and how often maintenance happens there. Paragraph 129 is explicit that the dutyholder must make that assessment, using their knowledge of the building, which is why it belongs in the block’s own compliance file rather than being left to the surveyor. HSE points to HSG227 for the algorithms that combine the two scores.
The Management Plan and the Reinspection Cycle
Where asbestos is or is liable to be present, regulation 4(8) requires a determination of the risk, a written plan identifying the parts of the premises concerned, and the measures for managing that risk. Regulation 4(9) requires those measures to cover monitoring condition, ensuring the material is properly maintained or where necessary safely removed, and getting information about its location and condition to every person liable to disturb it and to the emergency services.
L143 paragraph 129 lists what the plan should contain: who is responsible, a copy of the register or how to reach it, instructions that no work on the fabric starts without the register being checked, plans for any repair, protection or removal, the monitoring schedule, and what happens if the main contact is unavailable.
On frequency, the Regulations say only that the plan must be reviewed at regular intervals, and without delay if there is reason to suspect it is no longer valid or the premises have significantly changed. The ACOP puts a number on it: paragraph 143 says that as a minimum the plan, records and drawings should be reviewed every 12 months, and again whenever circumstances change.
Condition inspection is separate. Paragraph 144 requires identified or suspected material to be inspected periodically to check it has not decayed or been damaged, with the frequency depending on location and on what goes on around it. There is no fixed interval in law: material in a locked plant room does not need the attention of boxing in a stairwell that gets knocked by bicycles. Regulation 4(10)(c) then requires the measures taken to be recorded.
Passing the Information On
Most exposure in a block starts with a contractor drilling, lifting a floor covering or opening a riser without having been told. Regulation 4(9)(c) exists for that, and HSE guidance says the register should reach contractors as early as possible, ideally when you ask for a quotation, so that price and method already reflect the building. It is a contractor management control as much as an asbestos one.
The contractor carries an independent duty. Regulation 5 prohibits an employer undertaking demolition, maintenance or other work liable to expose their employees to asbestos unless they have assessed whether asbestos is present, of what type, in what material and in what condition, or, where there is doubt, assume it is present and not chrysotile alone and work to the Regulations accordingly.
Labelling is optional. Paragraph 138 allows the asbestos warning sign or another system such as colour coding, but if you do not label, you must make sure anyone who might work on the material knows before they start. Residents need less: paragraph 137 says they should know where material is, be told not to do anything that could damage it, and report accidental damage promptly.
Paying for It Through the Service Charge
The cost of a survey, of building the register and of managing the material is a service charge cost if the lease permits recovery. That question is answered by the lease, not by the Regulations. Where recovery is permitted, section 19 of the Landlord and Tenant Act 1985 limits it: relevant costs count only to the extent they are reasonably incurred, and only where the works or services are of a reasonable standard.
Remedial work is where consultation bites. In England, regulation 6 of the Service Charges (Consultation Requirements) (England) Regulations 2003 sets the qualifying works threshold at an amount which results in any one tenant’s contribution being more than £250. A removal in a communal riser can pass that on a single invoice in a small block, so the timetable should start when the refurbishment survey is commissioned, not when the quotations arrive.
Managing a block where this applies? Our team can talk it through with you.
Where to Start If the Block Has Nothing on File
A workable order of events for a board that has inherited no asbestos paperwork:
- Establish who holds the repairing obligation for the communal parts, and record the lease clause it comes from.
- Find the completion date. Before 2000, presume asbestos until you have strong evidence otherwise.
- Gather what exists: plans, the health and safety file, earlier surveys and removal records. Ask former directors and the previous agent.
- Commission a management survey from a UKAS accredited organisation, with a written scope covering the areas in HSG264 Box 4 and a list of what could not be accessed.
- Turn the report into a dated register with a drawing, then do the priority assessment yourselves, because only you know how the building is used.
- Write the plan: named responsible person, a deputy, the monitoring schedule, and the rule that no work on the fabric starts without a register check.
- Issue the register with every request for quotation, and diarise the 12-month review.
If you are a director and nobody can tell you where the register is, closing that gap comes before any decision about removal. Plymouth Block Management carries out formal property manager inspections every three months, which is usually where condition checks on known materials get picked up, and tracks asbestos management with renewal dates alongside Legionella, electrical and lift compliance as part of our compliance, health and safety service. If you want a second view on whether your block is in scope and what evidence you should already hold, ask for the compliance file to be reviewed.
Asbestos Questions
Six points that come up whenever a board looks at this for the first time.
Does the Duty Cover the Inside of My Flat?
No. Regulation 4 reaches non-domestic premises and, through them, the common parts of multi-occupancy domestic premises. L143 paragraph 89 puts those common parts in scope but not the private domestic area inside each flat, and HSG264 paragraph 10 adds that the requirements place no direct duties on landlords for individual houses or flats. Other law still applies to work done there: section 3 of the Health and Safety at Work etc. Act 1974, and the general requirements of the Control of Asbestos Regulations 2012.
Our Block Was Built in 1996 and We Have No Survey. Must We Commission One?
The Regulations require a suitable and sufficient assessment, not a survey as such. HSE accepts that a dutyholder can instead presume asbestos is present and manage on that basis, but notes a survey is often more proportionate. For a 1996 building, L143 paragraph 118 means you should presume asbestos unless you hold strong evidence otherwise, and presumption commits you to treating every intervention as asbestos work.
How Often Does the Asbestos Have to Be Reinspected?
There is no fixed interval in the Regulations. Regulation 4(9)(a) requires adequate measures for monitoring condition and regulation 4(10)(a) requires review at regular intervals. L143 paragraph 143 says the plan, records and drawings should be reviewed at least every 12 months; paragraph 144 says condition inspection frequency depends on where the material is and what happens around it.
Can We Hand the Duty to Our Managing Agent?
No. L143 Table 6 states that where an owner or leaseholder uses a managing agent, the agent acts on the owner’s behalf but does not assume the owner’s duties in law. Paragraph 103 confirms the duties cannot be delegated. You can nominate competent people to do the work, and paragraph 105 requires you to satisfy yourself about their competence, independence and management systems.
Do We Need a New Survey Before Replacing the Communal Boiler?
For that area, usually yes. HSG264 paragraph 50 says a refurbishment survey is required for all work which disturbs the fabric of the building in areas where the management survey has not been intrusive, and the decision rests with the dutyholder. A management survey covers routine and simple maintenance; chasing walls for new cabling goes beyond it.
Can the Cost Be Recovered Through the Service Charge?
If the lease permits recovery, yes, subject to section 19 of the Landlord and Tenant Act 1985, which limits relevant costs to those reasonably incurred and works of a reasonable standard. If remedial or removal works would cost any one leaseholder more than £250, the statutory consultation under the Service Charges (Consultation Requirements) (England) Regulations 2003 applies before the contract is entered into.
Plymouth Block Management is an ISO 9001:2015 certified managing agent (certificate FS 685565, audited by BSI) and a member of The Property Ombudsman, providing residential block management across Devon, Cornwall and the wider South West.
Sources
Everything above is taken from these, not from a summary of them:
- The Control of Asbestos Regulations 2012, regulation 4 legislation.gov.uk
- The Control of Asbestos Regulations 2012, regulation 1 legislation.gov.uk
- The Control of Asbestos Regulations 2012, regulation 7 legislation.gov.uk
- Managing and working with asbestos: Control of Asbestos Regulations 2012, Approved Code of Practice and guidance (L143, second edition, 2013) Health and Safety Executive
- Asbestos: The survey guide (HSG264, second edition, 2012) Health and Safety Executive
- Duty to manage asbestos in buildings Health and Safety Executive
- Arrange an asbestos survey Health and Safety Executive
- Provide information to anyone who might disturb asbestos Health and Safety Executive
- Make a register and assess the risk Health and Safety Executive
- Landlord and Tenant Act 1985, section 19 legislation.gov.uk
- The Service Charges (Consultation Requirements) (England) Regulations 2003, regulation 6 legislation.gov.uk
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