Until the early 1990s, the mineral asbestos was used in the manufacturing of a lot of products. Old building materials for instance often contain asbestos.
A better insight into the harmful effects on our health when inhaling asbestos fibres ultimately resulted in a full ban on stocking and processing asbestos with effect from 1 July 1993. Naturally, a lot of structures were built long before that ban came into effect.
If after the purchase of residential or business premises asbestos is discovered in such buildings, the buyer and the vendor are faced with the necessary problems. They are confronted with the question if the presence of asbestos is a defect for which the vendor is liable. In that case, the buyer could in principle cancel the purchase or pass the cleaning-up costs on to the vendor.
A building should have the qualities the buyer may expect from a well-maintained building when he buys it. Also, the buyer may assume that the building is in a condition that makes it possible to use it in a normal manner. If the presence of asbestos obstructs the normal use of residential or business premises and if the buyer could have expected there not to be any asbestos, it constitutes a defect for which the vendor is liable.
Whether this is the case first depends on whether it concerns unbonded or bonded asbestos.
It is also important to know if the vendor was or should have been aware of the asbestos and if he should have informed the buyer of his own accord. Did the vendor have a duty of disclosure or should the buyer himself have conducted a survey?
In the case of unbonded asbestos such as sprayed asbestos, the fibres do not strongly adhere to any other material and they are released much quicker.
If the asbestos fibres adhere to another material stronger, as is the case with asbestos cement, they release few fibres, presuming the material is undamaged.
If the buyer discovers unbonded asbestos after the sale, there is little room for discussion. This concerns such a big health risk that the normal use of the building is obstructed. Furthermore, the vendor is obliged to report the presence of unbonded asbestos or, if he was not aware of this, to conduct a survey to find out.
The matter becomes more difficult when bonded asbestos is involved.
In that case, you have to look at how the buyer wants to use the building. If it is used as a residence or as a shop, and the buyer does not intend to undertake any activities that would constitute a risk of asbestos being released, there is in principle no problem.
If the buyer does intend to undertake activities that carry such a risk, such as certain refurbishments, the question is if the vendor should have been prepared for that. The nature of the refurbishments and the condition of the building play an important role in that respect. If the refurbishments are of a customary nature and they could have been expected given the condition of the building, the risk of any asbestos being released can be regarded as a quality that obstructs normal use.
If the building is used for commercial activities that involve drastic changes to the structure of the building, the risk of asbestos being released is even bigger and people will be quicker to presume obstruction of normal use.
As soon as it has been established that the discovered asbestos obstructs normal use, the question arises if the asbestos having remained hidden can be attributed to incomplete information from the vendor or a poor survey by the buyer.
If the vendor was aware of the asbestos, he should have reported it. If he fails to do so, he is in principle liable.
Things are different when the presence of asbestos was obvious or highly likely and the buyer should have been aware of it. The buyer's expertise can play a big role in this, as does the age of the building and the impressions the buyer has created about his own knowledge. It is also possible that the vendor had good reason to assume that the presence of asbestos was of no importance to the buyer. It may have been explicitly announced beforehand that the building was only going to be used for activities that do not constitute a risk of asbestos being released, for instance.
If the vendor was not aware of the asbestos either, the buyer’s duty to have a survey conducted does in principle weigh greater, which means the presence of hidden bonded asbestos tends to be at his risk. However, if the buyer would not have to have been prepared for the presence of asbestos in the given situation, things may be entirely different again. The impressions created by the vendor during the sales negotiations, the age of the building and the expertise on both sides may entail that the liability is placed with the vendor.
Whether or not the buyer can cancel the purchase or can pass the costs for a clean-up on to the vendor depends on the strength of the asbestos, the use of the building, the vendor’s knowledge and the knowledge the buyer could have been assumed to have. That is why this is a difficult question to answer. Getting legal advice in such cases is, therefore, a wise decision.
Are you a buyer, a vendor or perhaps a tenant or landlord and are you confronted with an asbestos issue? Please contact us for a no-obligation meeting with mr. D.C. van Genderen, lawyer of the Property section of Leeman Verheijden Huntjens Advocaten.
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