REINZ Asbestos Update

REINZ Asbestos Update March 2019

Asbestos Awareness

REINZ UPDATE
Released March

NEXT WEEK, APRIL 1 – APRIL 7 IS GLOBAL ASBESTOS AWARENESS WEEK – ONE WORD. ONE WEEK. ONE WORLD

PRACTICAL TIPS FOR MANAGING ASBESTOS
Property Managers have a duty of care to ensure so far as is reasonably practicable, the Health and Safety of workers or anyone who could be affected by active work.

Property Managers need to establish:

Is ACM (Asbestos-containing materials) in or on the property? You could assume its present in some form if the property is built pre 2000 or built 1940 – 1980 and has been altered or refurbished.

– Has the home been maintained in a good condition?

– Are there obvious signs of ACM or do you suspect some materials – have them tested and advise the tenant how to stay safe until you have the results of the tests.

Landlord Asbestos Awareness

If a tenant is concerned about areas in or on the home that may contain asbestos, please don’t delay in visually inspecting them and following up with testing if unsure. If asbestos is present, a plan needs to be put in place to ensure the safety of the tenant and anyone who could be affected by this.

Develop and maintain a report for your rental portfolio of properties with ACM issues. This should include: Address; Date of Build; Known ACM Presence; Condition; Action required; and Comment.

Only use approved and competent contractors and advise contractors that ACM is present and what the Asbestos plan is.

Asbestos Awareness inspections

Carry out regular inspections to check the condition of the property and any changes to the situation. Make updates in the register.

Under HSWA (Health and Safety Work Act) landlords must ensure that, when work is carried out at their property, it is done safely and without endangering workers or others, including tenants. Landlords must identify asbestos in the workplace and document plans for managing its risks in an asbestos management plan, if there is a risk of exposure to respirable asbestos fibres.

What does good practice look like?

The following scenarios outline the actions you must take or ensure take place, so you meet your duty under HSWA. They also illustrate that duties are specific to the part of the property where there is risk of exposure to respirable asbestos fibres.

Scenario 1 – Demolition of a shed

A landlord is planning to demolish a shed located at the rear of a rental property. The shed is of an age and type that is likely to contain asbestos, such as a structure built, altered or refurbished before 1 January 2000 with building elements that may contain asbestos. Until now, rather than identifying all asbestos, the landlord assumed it to be present and advised the tenants how to stay safe.

Before the demolition, the landlord must ensure all the asbestos from the shed is identified and removed, so far as is reasonably practicable. An asbestos management plan needs to be prepared during the planning process, prior to the demolition. A licensed asbestos removalist can prepare the plan for the landlord, as they are likely to already have the information needed for their own asbestos removal plan. The landlord and the removalist will need to work together to ensure the removal is carried out safely and in accordance with the regulations. In this scenario, the house does not need to be included in the asbestos management plan because the work does not involve the house.

Scenario 2 – Renovating a kitchen and bathroom

A landlord is planning to refurbish the kitchen and bathroom of a rental property. The property is of an age and type that is likely to contain asbestos. Rather than identifying all asbestos the landlord assumed it to be present and advised the tenants how to stay safe. Before the refurbishment begins the landlord must ensure all the asbestos from the kitchen and bathroom is identified and removed, so far as is reasonably practicable. The landlord must ensure the asbestos management plan is prepared during the planning stage and work with a licensed removalist to ensure the removal is carried out safely and in accordance with the regulations. In this scenario, there is no requirement to identify all asbestos and prepare an asbestos management plan for the areas of the house not being renovated because there is no risk of exposure there.

CASE UPDATE: ASBESTOS
This case was about the landlord‘s obligations under the Residential Tenancies Act 1986 and the Work (Asbestos) Regulations 2016 in relation to asbestos.

Facts: The tenancy commenced on 19 April 2018 and ended on 19 October 2018.

The tenants and their parents moved into the property together. The tenant’s parents had just arrived in New Zealand from the Netherlands. There was a large garage situated on the property which enabled the parents to place their belongings there. After moving into the property, the tenants realised that the property was not big enough to accommodate all of them. In May 2018, the tenants informed the landlord that they would be moving into the neighbouring property, however, their parents would remain in the tenancy premises.

An email was sent from the landlord to the tenants in May 2018, stating that the property would be renovated, namely the garage door would be replaced. The landlord also informed the tenants that there would be builders entering the property to take measurements which subsequently happened.

On 27 August 2018, the tenants received an email from the landlord, informing them that the garage renovations would start a few days later. The landlord asked that the belongings be moved away from the garage door as the ceiling panels and wall linings were also going to be replaced.

Once the builders entered the property, they informed the tenants that the belongings would need to be removed from the garage fully. The belongings were removed from the garage and at this point, the tenant’s father who was a retired builder, picked up a piece of ceiling panel from the ground and thought that it may be asbestos. He expressed his concern to the builder who disagreed with him. The renovations were completed three weeks later.

The tenants gave notice that they were discontinuing their tenancy at the end of the fixed term on 19 October 2018.

On 27 September 2018, the tenants had a piece of the ceiling panel tested for asbestos which came back positive. They subsequently contacted WorkSafe and were advised to get further testing done. On 2 October 2018, a testing team entered the property and took five swabs; two from around the garage, one from the tenant’s father’s clothes, one from the living room carpet and from the fathers’ tools. There were four positive matches of white asbestos.

On 9 October 2018, the landlord arranged for an asbestos removal specialist to attend the property. The specialist advised that the property be vacated, the vacuum be disposed of, and all fabrics/clothing be discarded.

On 10 October 2018, the landlord emailed the tenants suggesting that they remain on the property and continue removing their belongings during the asbestos clean-up process. On the same day, a prohibition notice and an improvement notice was issued by WorkSafe confirming the health and safety regulation breaches and the exposure by occupants and workers to the risk of inhaling asbestos fibres.

On 11 October 2018, the parents moved out of the premises.

Findings: The Tenancy Tribunal ordered that the landlord pay the asbestos testing fees. A declaration was made that the landlord was responsible for the asbestos clear up and would be liable for any outstanding testing fees.

The Tribunal found that the landlord had breached section 45 of the Residential Tenancies Act 1986, in that a landlord must comply with all requirements in respect of buildings, health, and safety under any enactment.

The landlord had not complied with the Health and Safety at Work (Asbestos) Regulations 2016 sections 10(1): duty to ensure asbestos is identified at workplace; 12(1): duty to ensure presence and location of asbestos indicated; and section 20 (2): duty to determine presence of asbestos when carrying out refurbishments. The landlord also failed to comply with the Health and Safety at Work Act 2015 section 36(2): primary duty of care of the health and safety of tenants and section 36(3): ensure that the work environment is without risks to health and safety.

You can find the full decision here.

ASBESTOS INFORMATION SHEETREINZ has prepared an Asbestos Information Sheet to help guide Property Managers, available here.

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