There are a number of legal obligations imposed on real estate agents in relation to Asbestos in properties engaged to sell or manage. These include:
- A duty of care to the client and workers engaged to carry out work on the property
- A commitment to act honestly, fairly and professionally
- A responsibility to disclose certain matters to prospective buyers and tenants.
According to the Department of Fair Trading – it is reasonable to assume that properties constructed before 1980 may contain Asbestos and possibly loose fill Asbestos insulation.
What is loose-fill Asbestos insulation (‘Mr Fluffy’)
Throughout the 1960s and 1970s, pure loose-fill Asbestos (easy to disturb and fibres to be inhaled) was sold as ceiling insulation by a company known as ‘Mr Fluffy’ who installed insulation in around 1,000 houses in the ACT and also into homes in NSW. To date 91 houses have been identified in NSW to contain loose fill Asbestos insulation.
What should real estate agents do?
Real estate agents should have processes in place for complying with the Work Health and Safety Act 2011 to as far as is reasonably practicable, identify and manage the risks from Asbestos contained in properties they lease and/or manage, or are engaged to sell.
The Department of Fair Trading recommends the following steps:
- Agents should inform property owners that properties constructed before 1980 may contain loose-fill Asbestos insulation.
- At the time of conducting their initial inspection, agents should ask the property owner to complete a questionnaire which includes:
- What date was the property originally constructed?
- Has the property been renovated since it was originally built? If so, obtain details.
- Is the principal aware of the presence of any loose-fill Asbestos insulation in the property?
- If yes, the principal should specify all locations where they believe loose-fill Asbestos insulation is present.
- Has a Licensed Asbestos Assessor inspected the property for loose-fill Asbestos insulation? If yes, is a copy of the report available?
- If, based on the information received from the property owner, the agent becomes aware of the presence of, or suspects that Asbestos or loose-fill Asbestos may be present, the agent should take measures to ensure the health and safety of their workers, clients and others by:
- Request the owner provide test results to the agent.
- Request the owner informs the residents of the test result.
- If the likelihood of exposure to airborne Asbestos fibres is high, the agent should exclude their workers and clients from approaching the site.
- If the owner declines to cooperate, the agent should contact Service NSW on 13 77 88 and seek further advice.
Agents should also take the following precautions:
- Do not access or direct a person to access the ceiling space or sub floor areas.
- Do not drill or direct a person to drill into walls.
- Provide the owner with information about loose-fill Asbestos insulation and recommendation for testing by a Licensed Asbestos Assessor.
NSW Fair Trading advises that agents should be aware that the potential existence of loose-fill Asbestos is a ‘material fact’ that should be disclosed to any persons interested in the property. The law provides significant penalties for agents who fail to disclose information that could influence decisions on whether to buy, sell or rent a property.
The information contained in this document is general only and is intended to provide guidance as to some of the issues which may arise in relation to the presence of Asbestos and loose-fill Asbestos in properties being offered for sale or lease by real estate agents. It does not purport to be comprehensive.
Accordingly, Regional Enviroscience expressly disclaim liability to any person relying on the contents of this document. Further and importantly, this information is not legal advice and should not be relied or acted upon as if it were. Agents and any other persons reading this information should obtain their own legal advice about their legal and other obligations. They should not rely on this information as a substitute for doing so.
Juliet Duffy holds a Master of Sustainable Management from Sydney University, is a Licensed Asbestos Assessor and has been managing environmental health issues since 1988. Juliet is Director of Regional Enviroscience – an NATA Accredited Asbestos & hazardous materials laboratory and occupational health consultancy based in regional NSW – Hunter Valley, Central NSW and the Riverina.