Selling A House That Contains Asbestos – Ummm

Shane Lishman raises an important issue on this subject. What do you do when selling your house containing asbestos material? The question came about after reading the article on News24 (Published 18/04/2018) regarding the suspected “hit” on a man regarding a R225m “Asbestos Auditing Contract” in the Free State.

What would require such an audit in the first place? According to News24, the contract in question has received criticism from the DA in the Free State. The party in 2015 unsuccessfully brought an urgent court application against the provincial human settlements department in order to halt any further payments to Blackhead. It was not known at the time that Blackhead was in fact working in a joint venture with Diamond Hill.

Sources familiar with the matter claim that the human settlements department has not received any value for money for the R230m paid to the joint venture.

Asked to provide records of the work supposedly done by the joint venture, Sodi’s lawyer responded: “Unfortunately, the information that you have requested constitutes intellectual property owned by the department and accordingly, it would be inappropriate for Blackhead to provide you with this information. Naturally, the department would be best placed to disclose this information to you.”

The department, however, also refused to provide News24 with any records or documents detailing work done on the asbestos auditing project.

Shane Lishman discusses the issue of Asbestos in Houses and what owners should know.

Shane Lishman took to the internet looking for houses that contained asbestos and for sale. “I was really surprised how many houses are advertised with the words asbestos, roof asbestos, ceiling asbestos etc.

Nevertheless, the existing asbestos legislation published under the Occupational Health & Safety Act, 1993, is about to be replaced with the Asbestos Abatement Regulations in the near future. Comments have been invited by the public since its publication.

When attending a Department of Labour(DOL) presentation in Durban one of my pressing questions was the sale of houses and buildings and the New Regulations. Although the discussion was slightly fragmented, it was clear that:

  • DOL would not get involved in such and the local authority would have to deal with it,
  • That as soon as the home owner got involved in repairs – the home owner then becomes the EMPLOYER and the full regulations apply, I assume that due to the low numbers of DOL inspectors that the local authority needs to deal with it too,
  • The real estate market had not been thought of in the “scope of application “of the new regulations, which only focuses on employers and self-employed persons, and
  • This results in the “Employer” and not the “Owner” would be held responsible for application of regulations? Interesting in the renting market is it not?

Whilst some financing houses such as First National Bank (FNB) do require a Clearance Certificate that includes asbestos, it was difficult to find the approach of other banks in this regard. (Perhaps readers can update me on this?). Even harder to find was standards on the experience and qualifications of the person issuing these Clearance Certificates. This is only partly addressed in the new regulations and was much spoken about at the Durban Conference. (I together with another Occupational Hygienist made comment to the DOL on this matter amongst other comments).

According to the draft regulations, an employer or self-employed person, must ensure that all asbestos containing materials are identified by a competent person. The regulations then go on identifying this “competent person” as a person with the required knowledge, training and experience, and where applicable, qualifications specific to the task. The question on the qualification, the regulation refers us to the National Qualifications Framework, on which there is at present no such qualification listed.

The new regulations are a well needed update, in some cases I believe not going far enough, but the application of a 1st world standard in a developing country has economic implications and cannot simply be implemented without thinking of the socio-economic implications, e.g. the seller would have to remove the asbestos before one can sell it, as this would be termed selling a Hazardous Substance. The lawyers would have to ensure that the buyer would have to accept this in the terms of sale. House price would drop dramatically, and the future owner would be “lumped” with this problem. On the other hand, some entrepreneurs would make a killing.

Applicable to homeowners investigated this, and asked Rudy D. Maritz, Director of PRM Cygma, a Property Risk Management Consultancy, to comment on the issue of the application of these regulations on the homeowners.

“ It is a very interesting scenario, given the changes coming in the real estate sector. Firstly we saw the Construction regulations of 2014 which places the duty on the owner of a building to ensure it is safe for continued use. This did however exclude the homeowner, where the house was intended for personal occupation by the owner. Property owners in the rental market is not excluded and has to comply with the required annual inspections of buildings.

The proposed new Asbestos regulations may not be strictly applied to homeowners, but could be triggered in certain cases. If you own a house with an asbestos roof, and you require painting, repairs or replacement of the roof sheets, unless you do it yourself, you will become an “asbestos client” performing type 1 asbestos work.  If you own a building, such as a shopping mall, office block or industrial complex, you would trigger the regulations as well during maintenance activities.

A third change we are about to see in the real estate market is the replacement of the Estate Agents Affairs Board Act, with the Property Practitioners Act. This Act provides inter alia for the registration of a property assessment practitioner who advises a property buyer on the safety, any defects or anything that would influence the conclusion of a sale or rental agreement. This change is to introduce a measure for consumer protection into the real estate buyer market, which is currently excluded under the “Voetstoots” or “As is” clause in the common sale agreement and the Consumer Protection Act, 2008.

New Opportunities opens for Safety Officers in Real Estate market.

It is however clear from comments by the Department of Labour that it has no interest in the protection of the public and will pass the buck on to Local Authorities, who most likely will enforce this via the Building Control Inspectorate.

Regardless of who does the law enforcement, a property owner could face some severe civil claims should any person rent or buy a property containing asbestos without disclosing it. In particular, if an occupier contracts an asbestos related illness such as asbestosis. In order to protect yourself from liability, under the common law duty of care, it would be advisable to make sure you make an assessment of all asbestos containing materials in the house or building.” Maritz commented.

This brings us then to the question of who is the “competent person” to perform this “asbestos audit”.

Asbestos Audits?

We will look at this question in our next article on the matter. Be sure to subscribe to our newsletter to stay informed.

Shane Lishman
Shane Lishman is a member of the Technical Committee with the International Association of Commissioning Engineers and holds the title of MIACE; he is also a Chartered in the United Kingdom with the International Organisation of Safety And Health, CMIOSH. He holds a Post Graduate Qualification from Nottingham University. Areas in which he has work or consulted include: Oil and Gas; Construction; HSE Commissioning; Forestry; rail; hospitality industry; Chemical industry including printing; to name a few. Shane has worked in the Middle East, countries in Africa and South Africa, specialising in mega contracts. His last 4 contracts have ranged from US$400m to US$1.7bn, and a future contract of US$9.8bn. Shane has not forgotten his roots and still practices when he can in South Africa and contributes to the profession as a whole.

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