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Potential Asbestos Threat In Rented Property

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« on: March 06, 2020, 01:07:47 AM »

Hello...

I hope someone can advise me on this, the points my wife and I would like clarification on are at the end of this waffle...

Our rented accommodation had some damp and leaks appear recently. One leak was new and first occurred during the recent storms.
The other was in the bathroom, which had previously leaked last year and appeared to be fixed (so we thought), but returned with the recent heavy rain.

We informed the landlord of this and he arranged for an insurance assessor to come in (the landlords never came to see the leaks or damage, they only relied on photographs we provided via WhatsApp).

Their claim for storm damage was rejected, however the assessor also told the landlady that there was a potential asbestos threat in the bathroom and she had to sign a form acknowledging this.

My wife was at home and overheard their conversation.

The threat the advisor referred to is the fact that the leak has dissolved small portions of the Artex on the bathroom ceiling.
Obviously, a threat is dependent on when the Artex was done. My gut feeling is that it is pre-2000, given the age of the building and look of the bathroom.

Working in a Museum with many 20th Century objects, I have undertaken Asbestos Awareness training twice and know that asbestos containing materials (ACMs) such as Artex can be problematic if disturbed.

I would have assumed that the landlord is legally obliged to inform us of this (potential) threat. It is over ten days since my wife overheard this, yet nothing has been said to us.

If I was a landlord, and knowing what I know about ACMs, I would have informed my tenants of this and brought in someone to test for ACMs, out of professional courtesy, never mind any legal ramifications, especially given there is also a four year old child in the household.

I've looked for information on the internet but there are so many different regulations mentioned. It all feels a bit overwhelming, and I was hoping someone just knew straight off the bat what our position is.

We were in the process of renewing our lease when the storms came. We had not even received the Docusign agreement when our landlord began sending my wife texts about us being liable for 'large costs' should his remortgaging of the property be delayed - a claim that was spurious in the extreme - by our having not yet signed. He would inform us that things were in hand, yet end a text with "contract contract contract", amongst other odd things. This went on for almost a week and was quite stressful, as you can imagine.

We received the contract on the Friday when the storms commenced for a second time (21st February) and mulled it over for the weekend and took advice from a family friend who is a Housing Officer. She said we should not sign as there were several new additions, compared to our 2017 lease, which weighed heavily in the landlord's favour. This, combined with, in our advisor's opinion, messages that were "threatening and harrassment in nature" meant we felt we could not stay on in the home we welcomed our son into the world in, even though we have been exemplary tenants for over four years.

Thus, relations with him are fraught at the moment and I need to know exactly where I stand legally, before I have to communicate with him again over this situation.

I think for my own peace of mind I need to have the Artex tested, just so we know exactly what we are up against. I have an industry contact, through my Museum, who I trust implicitly. They have quoted me £250, although this may be lower due to them being able to combine it with another job in the area, hopefully. The money is not the concern here, obviously, given the implications of inhalation of any asbestos fibres and the long-term implications for my family's health.

I'd just like to add that in twenty-seven years of renting, with both agencies and private landlords, I have never undergone such an experience before. There is a lot more to this story, to do with him (seemingly) not being keen to spend money on HIS investment, and an intent to 'always have the last word' or doubt what we have told him is going wrong at the property.

The situation currently is a lot worse than any leak or lack of water pressure or even the fact there is a 20 year old boiler a previous CORGI engineer advised was due for replacement in 2018. The boiler is situated in our son's bedroom.

He has also never advised us which scheme our deposit is lodged with, in over four years.
The lease agreement states the "deposit is with the landlord" and that's it.

Anyway, this is a long post and I am dog-tired and stressed out. I have always looked after anyone else's house as if it were my own and I have found this to be a good way to engender trust in a landlord/agency. Sadly, in this case, it has always felt to be a 'battle' to get things repaired that actually benefit the landlords and their investment.

So, in a nutshell, can anyone confirm the following:

Are the landlords legally obliged to inform us of a "potential asbestos threat"?

Would they be obliged to pay for testing to confirm the issue?

As our communication with the landlords is not ideal at the moment, and we just literally want peace of mind in the first instance re: ACMs, where do we stand with just getting the testing done independently?

And, if the results are that there are confirmed ACMs, what recourse do we have in order to exit the property ASAP and not have to sit out another 7 weeks of our notice?

We are not seeking to take action against our landlords at this time, but are concerned they have kept this update in the light of the insurer visit, officially, to themselves. Maybe it is just them being unaware of the impact of ACMs on someone's health, or they don't take their responsibility seriously enough to understand all the relevant information and hazards involved in property ownership/management.

I am well aware that asbestos is a 'legacy issue' in all walks of life - we are on the lookout for it at work all the time - and that the fact it exists in the property is not the landlords' fault, but their lack of communication in advising us of the potential threat presumably is. Is it therefore a dereliction of duty?

Any thoughts on their failure to inform us of the TDS are also welcome.

Thanks for taking the time to read all this and I truly appreciate any help or advice proffered.

Yours faithfully,

Museum Man
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« Reply #1 on: March 06, 2020, 08:28:33 AM »

First of all... why aren't all your efforts focused on finding a new suitable home within a short timeframe?

If you were, all the other stuff, apart from Deposit protection, would become less interesting. You have a relationship breakdown here. Why persist? Is there a good reason you don't fully cover?
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« Reply #2 on: March 06, 2020, 10:20:30 AM »

You can obviously arrange testing... but you can't arrange testing and then charge the Landlord back (either unilaterally, or depending on outcome) based on an overheard conversation between two other parties where the word "potential" was used. Think about the rationality of that.

If you were to move out... and you found your Deposit was not protected correctly (and, yes, that includes not formally telling you about it, so there's a good chance, based on what you say)... then the ker-ching from that could really help you with costs. Is there a pressing reason you are staying in this property?
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« Reply #3 on: March 06, 2020, 10:40:34 AM »

First of all... why aren't all your efforts focused on finding a new suitable home within a short timeframe?

If you were, all the other stuff, apart from Deposit protection, would become less interesting. You have a relationship breakdown here. Why persist? Is there a good reason you don't fully cover?

We are not attempting to persist with anything, we are kind of stuck at the moment. (And, apologies, but I'm not sure what the comment "Is there a good reason you don't fully cover?" relates to?)

We're one week into a two month notice we had to give, which are the terms of the AST we are currently on. Our AST became a periodic tenancy last November and the landlord only asked if we wanted to renew at the beginning of February.

I was against it, due to aforementioned relationship problems with the landlord, but my wife loves the house and wanted to keep things easy and not move right now. We are also waiting to hear which school our boy will attend in April - there is one just three minutes around the corner which is excellent and, with all this in mind, I reluctantly agreed to renew for a 12 month lease (with six month break clause). The delay in the lease being forwarded to us, combined with the subsequent leaks and landlord's haranguing ultimately forced our hand not to renew.

As for looking into other places to live, of course I look every day. If we could afford to pay double rent for the next 6 weeks, we would. Rents in this area are £1200-£1300 for a two bed flat/house.

The potential for the release of asbestos fibres is something I cannot ignore. There will be other tenants move in when we vacate the property too, it's not just about my family.

Having done asbestos awareness training, I know it can have very serious health implications many years down the line.
I am not so worried for my wife and I, as we are in our mid-to-late forties, but my sonís lungs are less than five years old.

The main thing I want to know is whether the landlord is breaking any law by not informing us of the potential asbestos threat in the bathroom ceiling.

Sorry if this is all a bit long-winded, but I am (as you can probably tell) quite stressed at the moment.
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« Reply #4 on: March 06, 2020, 10:48:31 AM »

I've used this lot before with good* results: https://www.askaboutasbestos.com/ for considerably less than £250

*Good insofar as they confirmed the presence of asbestos in some old kitchen floor tiles, so not exactly a cause for dancing but no great bother either: if it's not disturbed it's not a problem and at least the days are gone when you'd get a lungful in the High Street every time a car braked.
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« Reply #5 on: March 06, 2020, 11:16:25 AM »

My "Is there a good reason you don't fully cover?" relates to things like your wife and the school issue... basically, you want to stay above and beyond potential safety considerations... you don't just want to get out and leave this behind you... which is what I would do... not even because of the potential asbestos... but because of the relationship breakdown... that cannot bode well, and you already have at least a hint that your Landlord doesn't play things with a straight bat (Deposit).

If you are in a periodic tenancy then all you have to give is "at least one month" notice... whatever AST you've signed it cannot override statutory law, so you have already been hoodwinked.

Respectfully, I disagree with your assessment of the main thing. And please don't pretend you're doing anything for the good of society at large. Let's get off our high horses and just deal with the problem as-is.

1) can you go ahead and engage some kind of asbestos survey? yes, of course, you don't need to tell the company you engage you're a Tenant - just pretend you're the homeowner... then at least you will have evidence if it turns out there is asbestos and you can go to your Landlord from a position of verified knowledge... and demand a resolution to the problem, or not... what you can't do is go and engage a survey on the behalf of the Landlord - and expect them to pay.

2) can you look for another place and move out in a shorter notice period than you think? yes, the law states that you might've been conned into thinking your notice period is twice as long as you thought... so the issue of double-rent probably goes away... but, even then...

3) if your Landlord has not protected your Deposit (correctly, at all, or even on time, or even not shared that information with you) then they're liable for a penalty (that is paid to you)... you could negotiate for assistance in moving... anything is possible.

For me - the biggest issue by far - is the relationship breakdown. A business relationship should not be prolonged if it is has broken-down... you seem somewhat put-out by the actions of your Landlord, that will only get worse in all probability. I think your energies are focused in entirely the wrong place... when these things happen you vote with your feet and, if necessary, leave the Landlord with a lemon to let out next time. If you felt it was a real issue - you would not be waiting... you would be out of there, using savings or whatever it took - I'm not saying you're a bad parent, I'm saying you're rationalising this out in the wrong way... you suspect a long-term health issue, and you don't feel your Landlord is going to do anything... and you're worried about costs???
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« Reply #6 on: March 06, 2020, 11:21:22 AM »

I think I would do this right now...

I would contact the Landlord... via some formal / written means (email? WhatsApp might do) and ask - in that kind of innocent and open-eyed way we can all do - "Hi, I was just looking for the info. regarding our Deposit, but couldn't manage to dig anything out, so I just wanted to check on a few things, could you please let me know which Deposit Protection Scheme you used to protect the Deposit of £X I paid to you on XX/YY/ZZZZ and provide the Deposit protection reference to me?"

I think the response to that will be incredibly interesting. Let us know how that goes down... you've already served notice... this bridge is going to be crossed at some point, you might as well alert your Landlord to a potential issue... and then, maybe, it might be time to start discussing £s... which might help you a little bit with your dilemma.

Let us know if you decide to try it.
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« Reply #7 on: March 06, 2020, 12:06:42 PM »

Thanks for all the replies.

I spoke to the company we use in our workplace about testing the ceiling, should find out when they are available sometime today.

I sent a WhatsApp message to the landlord this morning and asked 1) whether the Artex in the house has been tested before and 2) which TDS our deposit is lodged with, "as we don't appear to have a note of that anywhere".

I will look into the notice period - the AST from Barnard Marcus in 2017 mentions two things:

"Periodic Tenancy - If the Landlord agrees to allow the Tenancy to become periodic and the Tenant accepts the offer then should the Tenancy become periodic at the end of this fixed term of this Agreement then the Tenant acknowledges that he must give the Landlord not less than one monthís written notice which must also expire on the last day of a period of the continuation tenancy"

"Break Clause - Notwithstanding the fixed term stated in Clause 1 of the Main Terms of the Tenancy, the Parties hereby agree that this Agreement may be terminated by either party giving to the other at least two months notice in writing, such notice not to expire until after six months of the  start  date  of  the  Term.  At  the  end  of  such  notice  the  Tenancy  shall  end  and  all obligations  and  responsibilities  shall  cease;  subject  nevertheless  to  any  claim  by  either Party against the other in respect of any breach of any of the terms and conditions of the Agreement Should the Tenancy be terminated on a date which is not the last day of a rental period then  the  Tenantís  obligation  to  pay  rent  shall  cease  on  the  termination date  and  the  rent payment will be apportioned accordingly"

Notice was served on the 26th of February, by us not accepting the renewal terms, which was one week past our usual rent due date of the 19th.
This is why we believe we are 'locked in' until April the 18th (if Periodic rules apply) or 25th of February (if Break clause rule applies).

Anyway, yes, getting out ASAP is the priority.

Thanks again for the insights. Sometimes it is hard to see the wood for the trees and deal with things more rationally, when you are in an odd situation such as this.

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« Reply #8 on: March 06, 2020, 01:31:44 PM »

If your rent payment date is the 19th, and that's in advance, you assume your tenancy runs monthly from each 19th to each 18th.

If you are in a SPT and you served notice today... 6th March 2020... your notice would be for 18th of May 2020... that's the "at least one month and ending on a rent payment boundary"... but it wouldn't be "at least two months", therefore ending on 18th of June 2020. But that's theory... or is it?

So... if you served notice (you do need to serve notice, though, it doesn't naturally arise because you don't sign up for a new tenancy) on 26 Feb 2020 the situation is that it can't be for 18th Feb 2020 (because that's in the past), it can't be for 18th March 2020 because that wouldn't be "at least one month", but it will be for 18th April 2020... allowing you to meet your obligations under the SPT. So I agree with you, now, knowing actual dates - but it came across as though your Agreement stated at least two full months... it's not that at all, it's just gonna feel like a full two months because of the dates.
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« Reply #9 on: March 06, 2020, 01:36:51 PM »

I sent a WhatsApp message to the landlord this morning and asked 1) whether the Artex in the house has been tested before and 2) which TDS our deposit is lodged with, "as we don't appear to have a note of that anywhere".

This might get interesting, quickly. I assume you have two blue ticks already? Of course, that doesn't necessarily mean it's been read, but that it's been opened... it doesn't mean it's been understood... but when you see those blue ticks... and the Landlord starts to understand your direction of travel... you might have to put up with some more haranguing... but, then, you can do it back... and be in a position of power too (assuming you uncover something awry).
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« Reply #10 on: March 06, 2020, 03:39:30 PM »

Well, he replied in his usual, wildly unpredictable manner. At least there were no odd alpha male overtones this time, other than a weird dig/comment about how "I know you like to poke around". WTF.

Suffice to say, I'm taking the comment about surveys he's seen with a large pinch of death salt. The tenancy scheme bit is interesting. Still none the wiser really, it's like talking to the wind :)

This is copied verbatim from his reply:

"Artex....I hear you ..... let me share with you this truth....there was a crack in a garden coinciding with a wall being built on a project for me some years ago.....the next door guy tried to blame the wall.....but there was an earth quake in Japan! Salt is listed in the BNF with a side effect that includes death !  In other words Perspective ought to be maintained.

All records and all surveys I have ever seen show no record of any asbestos.

There is a theoretical risk that dissolved artex can become asbestos.... but any people I speak to about the small area in the bathroom I receive Ďwry smilesí , other less repeatable comments , and in the end that theyíve never known it or seen it.
Artex is a widely available common product. We will not be disturbing anything while your there.... please donít your self either ( I know how you like to poke around).

Your tenancy scheme ....Iíll look yours up next week and let you know. 

On that point in all my years of Being a Landlord Iíve never declined deposits to anyone.  However please ensure that grass is cut, windows cleaned, cooker cleaned , carpet hoovered, house generally dusted, and a general decent place left for the next tennant. Not more than normal decent. Finally in regard to deposits please have a list of current utility suppliers and evidence that your bills are paid or transferring with you.  Itís my practice upon the very second no bothersome matters in this particular regard are left for the new tennant Iím happy.  Please donít worry about up to the second you leave.... Iím happy to take it on a day before to assist you go smoothly.

If Iím contacted for an  onward landlord reference I am happy to supply. ( youíd be very surprised who contacts checking all sorts of credibility). You did always paid your rent and did always kept us updated."


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« Reply #11 on: March 06, 2020, 04:10:33 PM »

Your tenancy scheme ....Iíll look yours up next week and let you know.

The point here being that you should know already... you should have been provided details of where and how your Deposit was protected shortly after it was paid. You should have been served with the Prescribed Information (all the Schemes remind any Landlord they need to do this). If you haven't been, and you aren't aware of where your Deposit is, then that's already an offence. Doesn't "offence" sound like such a tough word, but nevertheless... it is what it is. Now, sure, give your Landlord a couple of days to find out the details and furnish you with them... maybe the Deposit is fully protected... but there could still be a breach of the legislation if you weren't served with the Prescribed Information... and, therefore, a Court must find in your favour and impose a penalty of between 1x and 3x the Deposit.

If the Deposit was protected... but you're just missing some documents... then a Court must find in your favour.
If the Deposit was never protected... then a Court must find in your favour.
If the Deposit was protected late... then a Court must find in your favour.

Most Landlords don't like to go to Court on a hiding-to-nothing, so they often 'get real' and start to negotiate in good faith. Let's find out more... when they come back with the Deposit protection details, let's see if all the dates match up, it hasn't lapsed, or anything silly like that... still, you could reply... "I've taken advice and I'm told I should have been provided with all the information about my Deposit being protected at the start of the tenancy - I do not recall receiving anything at the start of the tenancy, so is that something you could dig out ASAP, please, as I'd like to knock this part on the head and move onto other issues - next week is a little long to wait for information I should already have. Thanks."
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« Reply #12 on: March 06, 2020, 04:11:12 PM »

You can also search for your Deposit online yourself... for example, I just searched the DPS scheme for one of my Tenants - it came back with:

A deposit matching your search is protected with the DPS custodial scheme

I then tried myDepsits for another - receiving Your deposit is protected by mydeposits

It's easy...

Start here:

https://myaccount.depositprotection.com/#tenancy/checkDepositStatus

Then here:

https://www.thedisputeservice.co.uk/is-my-deposit-protected/

There here:

https://www.mydeposits.co.uk/tenants/deposit-checker/

Let us know if you find it.
« Last Edit: March 06, 2020, 04:18:06 PM by Hippogriff »
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