Applying Asbestos Abatement Regulations to Property Transfers

In recent years, employees and individuals have faced the highest susceptibility to contracting illnesses associated with asbestos dust exposure. As this could not go unnoticed, on 10 November 2020, Asbestos Abatement Regulations 2020 ¹ were introduced with the aim to curb and regulate the exposure of asbestos dust in the workplace ².

These regulations incorporate steps to be followed to determine whether asbestos poses a health risk to anyone in as far as properties that have asbestos are concerned. It is important to note that these regulations do not impose an obligation for every person to remove every asbestos material on their property. Those who are obligated to make these assessments are afforded the liberty to make provision for remediation or removal of these asbestos materials.

Undoubtedly, the regulations opened a window of questions from various parties including property owners and estate agents, to seek clarifications on who these regulations are applicable to.  

Regulation 2 of the Asbestos Abatement Regulations confirms that these regulations are only applicable to employers, contractors and self-employed people who may expose any person to asbestos dust in the workplace ³.  

Employers and self-employed individuals are obligated to ensure that any asbestos-containing materials located in or near the workplace are inspected and identified by a Competent Person possessing appropriate expertise, experience, and training ⁴.  This expertise must be practical, enabling the Competent Person to determine which materials contain asbestos and/or their locations. Additionally, they must possess the necessary skills to safely remove asbestos for analysis purposes.

Upon identification of asbestos-containing materials as prescribed in regulation 3, the employer or self-employed individual must establish an inventory to document in writing the presence of any asbestos-containing materials within the workplace ⁵.  This inventory must be maintained at the workplace. It is mandated by the regulations that employers or self-employed individuals produce Compliance Certificates for asbestos. It is further a requirement that employer or self-employed person ensures that a competent person reviews and if necessary, revised the inventory of asbestos in place, every 24 months (2 years) ⁶.

How are these regulations applicable to a property transfer?

When selling an older commercial and industrial property any known asbestos or asbestos-containing materials must be declared in the agreement of sale.  The Agreement of sale can either make mention that the inventory relating to the asbestos or asbestos-containing materials are annexed to the agreement or that the inventory will be provided by the seller before a spesific date.  If a structure was built (started and completed) later than 2011, after the promulgation of the Environment Conservation Act, 1989 Regulations For the Prohibition Of the Use, Manufacturing, Import And Export Of Asbestos And Asbestos Containing Materials, dated 28 March 2008, then no written declaration that the building is asbestos free, is required ⁷.

The regulations are not applicable to normal residential properties as the regulations are specifically limited to employers and self-employed individuals.  It is however advisable to declare any known asbestos at the property in the agreement of sale.  

Written by: Chris Nong
Moderated and approved by: Jean-Mari De Beer - le Grange

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¹ ASBESTOS ABATEMENT REGULATIONS 2020

² Explanatory Notes on the Asbestos Abatement Regulations 2020

³ Reg  2 of ASBESTOS ABATEMENT REGULATIONS 2020

⁴ Reg  3 of ASBESTOS ABATEMENT REGULATIONS 2020

⁵ Reg 4 of ASBESTOS ABATEMENT REGULATIONS 2020

⁶ Explanatory Notes on the Asbestos Abatement Regulations 2020

⁷ Explanatory Notes of the Asbestos abatement Regulations 2020

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