Key Points

1. As a residential landlord you are the person conducting a business or undertaking (PCBU) for your rental property. You may also need to rely on other PCBUs – such as property managers and building contractors – to coordinate, collaborate and cooperate when they share overlapping duties with you.
2. Under HSWA you have a duty to identify asbestos and prepare an asbestos management plan for work involving a risk of exposure to respirable asbestos fibres. For example, exposure is likely to occur from dust created when drilling or cutting into asbestos-containing materials.
3. The risk of exposure depends on the kind of work you’re planning to do. Types of work that create risk may include renovations, refurbishments or demolition work.
4. If the work creates a risk of exposure in an area of the property you must ensure asbestos is identified and an asbestos management plan is prepared.
5. The duty only applies:
• when you are planning and carrying out the work
• to the area relevant to the work creating a risk of exposure to respirable asbestos fibres.

The Asbestos Regulations – What does the law say?

The primary legislation governing work health and safety in New Zealand is the Health and Safety at Work Act 2015 (HSWA). This policy clarification sets out when residential landlords have a duty to identify asbestos and prepare an asbestos management plan.

Under HSWA 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 Are Your Responsibilities?

Specifically, you have direct responsibilities regarding asbestos while work is being carried out on any of your properties. This could be maintenance, upgrade, or renovation work. Your responsibilities are to your tenants as well as the tradespeople you bring into the property to carry out work. The Health and Safety at Work Act does not apply, however, to your rental property in general, i.e. when there is no work going on.

It applies during periods of maintenance, upgrade, or renovation work because the Health and Safety at Work Act treats you as a business. Your technical definition as a landlord under the Act is a Person in Charge of a Business or Undertaking. As you have this role, you have health and safety obligations in regard to any work carried out in your home.

So, if an electrician is installing a new light and disturbs asbestos in the process, you might be liable.

What Do You Need to Do Now?

The following applies if you know asbestos is in one of your properties. It also applies if you should reasonably know there is asbestos in your property, i.e. deliberate ignorance may not be a valid excuse. So, if any of your properties were built during the time period above, you should take the following steps:

• Clarify whether asbestos is present or may be present. If it is or you strongly suspect it is, you should identify where it is and what condition it is in. You may need to bring in professional assistance for this part of the process.
• Create a management plan for asbestos that is currently stable and does not need immediate removal. This includes mitigating risks to tenants and tradespeople while work is ongoing in your property. You must also ensure tradespeople are properly trained on the risks of asbestos. It is also important this plan is kept up-to-date on an ongoing basis.
• Remove any asbestos that is considered to be immediately harmful

The exception to the above is when you are carrying out a major refurbishment on one of your properties that contains asbestos. In this situation, you must go further than the above by bringing in licensed professionals to identify, plan, and deal with the asbestos in the property.

What Are the Implications for Non-Compliance?

Apart from the serious health and safety risks to tenants and tradespeople working in your home, you may face significant fines if you are found to be in breach of the asbestos regulations in the Health and Safety at Work Act. Sanctions are criminal and start at $30,000 for failing to engage in the process and fines can go up to $1million and also involve jail for very serious breaches.

For further questions & discussion, please contact Oaks Property Management Ltd at [email protected].