DEADLINE ALERT - Asbestos Regulations - what does this really mean?
It has come to our attention that an asbestos inspection company is sending emails to estate agents stating that it is now mandatory for sellers and landlords to "disclose the presence of any asbestos materials in a property, before entering into a new sale or lease agreement". The article also states that the Property Practitioners Act requires sellers and landlords to disclose the existence of all defects. It therefore suggests that the mere existence of asbestos, is a defect, and that this must now be disclosed. The author relies on the recently published Asbestos Abatement Regulations to substantiate this view. (Read here to view our previous publications on this topic - Asbestos roofing article
We disagree with the views expressed in this article.
The regulations do not in any way oblige sellers or landlords to disclose the mere presence of asbestos. The regulations only require owners of properties which have asbestos, and which may expose workers to a risk of exposure, to have it inspected, or what to do, if they wish to treat or remove asbestos. Furthermore, it is established law that where a purchaser purchases voetstoets, the seller can only possibly be held liable for material, latent defects he actually knew of and fraudulently withheld at the time of sale, and which the purchaser could not determine himself upon a reasonable inspection.
There is not and never has been a duty to "disclose all defects". And these PPA certainly does not change this as is alleged.
The mere fact that asbestos happens to form part of the roofing for example does not amount to a defect in any manner or form, which is what this article suggests. Assuming there is asbestos and assuming the property has been inspected, and that the asbestos has been found to be a threat, then this may need to be disclosed as a defect. At best, agents may want to possibly add some further questions to their condition reports, along the lines of:
Does the property have any asbestos that you are aware of which could also expose a worker to any risks associated with asbestos?
If so, has the property been inspected in terms of the Asbestos Abatement Regulations and can you provide a copy of the report?
If the seller cannot answer these questions to a purchaser's satisfaction, then it is for a purchaser to decide whether to make an offer or to attach any further conditions in this regard, if so inclined.