Asbestos is not solely a matter for buyers and sellers. Anyone letting a dwelling or commercial space also carries obligations regarding asbestos, and these will become considerably stricter in the coming years. As a landlord, you combine two responsibilities: the administrative certificate obligation under the Flemish Materials Decree and the classic obligation under tenancy law to provide a safe and habitable dwelling. This article sets out both and clarifies what a tenant can do when asbestos affects the property.
The certificate obligation for landlords
If you, as a landlord, hold a valid asbestos certificate, you must provide a copy to your tenant (Article 33/9 §2 of the Materials Decree). The timing depends on when the certificate exists: if you enter into a new lease and already hold a certificate, you provide the copy when the lease is concluded. If the certificate is issued during an ongoing lease, you have one month to provide the copy to the tenant.
This obligation forms part of the phased roll-out of the certificate requirement. Landlords of properties built before 2001 must hold a valid asbestos certificate by 2030. This ties in with the broader scheme under which, by 2032, every owner of a building constructed before 2001 must hold a certificate, regardless of any sale or lease. As a landlord, you would therefore be well advised to anticipate: obtaining the certificate takes time, and it is a document you will need in any event.
Asbestos as a defect in the rented dwelling
Quite apart from the certificate, the core obligation of every landlord remains: you must let a dwelling that meets the basic requirements of safety, health and habitability (Article 2 of the Residential Tenancy Act, now enshrined in the Flemish Housing Code). That requirement applies not only at the start of the lease, but throughout its entire term. Asbestos incorporated in good, bonded condition generally does not affect habitability. However, as soon as fibres are released, the situation changes fundamentally: the dwelling then becomes unhealthy and unsafe, which strikes at the very core of your obligations as landlord.
The distinction between bonded and damaged asbestos is decisive here. Bonded asbestos, such as asbestos cement or floor tiles in good condition, does not have to be removed; the law imposes no general remediation obligation. Damaged or non-bonded asbestos releasing fibres, on the other hand, calls for repair or removal. As a landlord, it is wise to monitor the condition of known asbestos applications and not to wait until a problem escalates.
Released asbestos: a defect that can terminate the lease
Case law takes released asbestos seriously. The Justice of the Peace has held that the presence of released asbestos fibres constitutes a serious and structural defect justifying termination of the lease at the landlord's expense (J.P. Ghent, 8 February 2016). The legal basis lies in general tenancy law: the landlord must ensure peaceful enjoyment and keep the leased property in good repair, and a dwelling that threatens the tenant's health does not meet that standard. Where the defect is sufficiently serious and structural, the court may terminate the lease to the detriment of the landlord, pursuant to Articles 1184, second paragraph, and 1741 of the Civil Code.
It is important that a real, current problem be involved. A purely theoretical possibility that asbestos might one day be released is not enough to establish a serious defect. There must be a demonstrable impairment of habitability, for example due to damage, weathering or works actually causing fibres to enter the living environment.
The tenant's rights
If the rented dwelling is affected by released asbestos, the tenant is not powerless. First, the tenant can demand repair: the landlord must address the source of the fibre release, either by repair or by removal. If the defect weighs heavily on the enjoyment of the property, the tenant can request a proportionate reduction of the rent for the period during which he could not, or only partially, occupy the dwelling normally. If the defect is serious and structural, he can claim termination of the lease at the landlord's expense. And where fault lies with the landlord, damages may be added, for example for moving costs, double rent or health-related harm. Which route is feasible depends on the seriousness of the defect and on the evidence the tenant produces.
Landlord's duties and liability
For the landlord, the message is twofold. Provide the asbestos certificate in good time when you hold one, and do not underestimate the habitability risk. Anyone who allows a known asbestos problem to drag on or conceals it when entering into the lease exposes himself to liability. You may be held liable to carry out repairs, to grant rent reductions and, in the case of a serious defect, to accept termination with damages. A non-warranty clause offers little relief where you knew or ought to have known of the problem. If you yourself only discovered the asbestos after your own purchase of the property, you may as owner be able to hold your own seller liable on the basis of the warranty for hidden defects on purchase.
As to the scope of your obligations: you must address dangerous, damaged asbestos, but you are not required to preventively remove every bonded asbestos application. A sensible approach is to document the condition, obtain the certificate and, in case of doubt about the state of certain materials, consult a certified asbestos expert.
The parallel with farm leases
Sensitivity to asbestos is not limited to residential tenancies. The issue also arises in farm lease law: asbestos in leased farm buildings, such as stables, can affect the lease rent and lead to disputes (J.P. Zomergem, 27 April 2012). Here too, the lessor must provide property in proper condition, and asbestos problems affect the value and enjoyment of the leased property.
How Reius Advocaten can assist you
Are you, as a landlord, lessor or tenant, facing a specific file in which asbestos plays a role? Reius Advocaten reviews your asbestos certificate, assesses whether the rented dwelling meets the requirements of safety and habitability, and assists you in negotiations or, where necessary, in proceedings. To understand how asbestos runs through the entire chain of purchase, letting and renovation, read our guide to asbestos in real estate. Feel free to contact us at info@reius.be or via the contact form.