A premise owner is not under an absolute obligation to remove asbestos, but is under an obligation to notify tenants of the presence of asbestos. If asbestos is present within a premise environment, a tenant could, among other things, legally notify the premise owner to choose between removing the asbestos or not being paid rent. Let us look at the rules and regulations surrounding the premise owner’s responsibility with regards to asbestos.
Federal Regulations Regarding Asbestos
Occupational Safety and Health Administration (OSHA) laws apply to all states. Your state may have other applicable laws regarding asbestos, but OSHA laws will apply as well. A state can’t get around OSHA requirements by coming up with a different law, but it can make a stricter law. OSHA regulations require a premise owner to ensure the safety of his/her building against asbestos in case he/she employs more than 10 people or hires independent contractors to make repairs. Under OSHA regulations, any building constructed before 1981 has asbestos in it. Thus, the only way a premise owner is not obligated to test for asbestos is if the building is newer or if the landlord does absolutely all the repairs him/herself.
As a result, OSHA rules require all residential premise owners to test their buildings for asbestos. If asbestos is detected, the law (not just OSHA law) requires the discovery of any dangerous substance be disclosed to tenants. On a related note, if the premise owner does not seek the services of asbestos inspectors to help uncover the presence of asbestos, he/she must inform the tenants that he/she doesn’t know whether asbestos is present in the building.
Presence Of Asbestos Does Not Automatically Guarantee Removal
Simply because the presence of asbestos has been discovered within a premise environment, does not mean it is automatically hazardous and thus it calls for its removal. Asbestos is generally found in materials like older insulation, vinyl tiles and heating duct wrap. It is dangerous when it becomes airborne. This can happen when the materials are disintegrating or disturbed, for example during construction work.
If asbestos within a premise environment does not pose the danger of becoming airborne through disintegration (an inspection will reveal this), and it will not be disturbed, the law does not require a premise owner to remove it. On the other hand, the law does require the premise owner to inform the tenant of the presence of asbestos and the kinds of activities that might disturb the asbestos to create a potentially dangerous condition.
Tenant Remedy For Asbestos
If asbestos presence in a premise is found to be airborne, a tenant has various legal options to follow in order to claim damages incurred, depending on the circumstance of the case. However, the options of having the premise owner remove the asbestos are limited. Generally, the most course of action the tenant can do is threaten to break the lease or withhold some portion of the rent until the asbestos is removed or otherwise made safe. Tenants can legally take this action under the landlord-tenant legal concept known as the “warrant of habitability”, which basically is an implied guarantee that the rental property is livable.
Premise Owner Liability for Injury
Keep in mind, we have not mentioned the tenant’s remedies if he or she has been exposed to airborne asbestos and the premise owner knew or should have known about the threat of exposure. The premise owner liability for money damages to the tenant could be quite high in these circumstances. Contact our Austin personal injury attorney today for a free consultation.
