30/09/2024
Asbestos Roofs⁉️
In South Africa, the current legal position regarding asbestos is regulated primarily by the Occupational Health and Safety Act (OHSA) and its associated regulations, such as the Asbestos Regulations, 2001 and the Asbestos Abatement Regulations, 2020. While the regulations are mainly aimed at protecting employees and the public in the workplace from asbestos exposure, they can impact property transactions, particularly when issues around latent defects, disclosure, and the voetstoots clause arise.
OHSA and the Asbestos Regulations determine that asbestos posing a health risk, when found in buildings, is handled and disposed of in a prescribed and responsible manner.
⭕️They do not currently prohibit the sale of properties with asbestos roofs⭕️
The sale of a residential property with an asbestos roof however involves various legal considerations regarding the seller's duty of disclosure of defects in the mandatory disclosure form.
Although a Seller can include a voetstoots clause in the sale agreement, the seller is still responsible for disclosing latent defects they are aware of. Therefore due to the fact that the presence of asbestos is regarded as a health risk, disclosing the asbestos roof as a defect is mandatory.
In addition to disclosing the fact that the property has an asbestos roof, and the fact that asbestos is considered a hazardous material because of its potential to cause respiratory diseases, it is of utmost importance that if the seller is aware that the asbestos roof presents a health risk (e.g., asbestos fibers becoming airborne), they are obligated to also disclose this information, as per common law principles. Failure to do so may result in liability for damages for any harm suffered by the buyer. As an extra precaution we strongly advise that when an asbestos roof is present in a property transaction, the seller may consider to call on a qualified person to check on the integrity of the asbestos and provide a report which can be presented to the buyer.
If the property is sold by a developer or a property speculator (acting in the course of business), the Consumer Protection Act (CPA) also applies. Section 55 of the CPA provides that goods (including immovable property) must be free of defects, reasonably suitable for their intended purpose, and of good quality. A seller cannot rely on a voetstoots clause under the CPA. Thus, the seller would be required to disclose the asbestos roof as it constitutes a defect or health hazard.
The PPRA includes specific obligations related to property marketing, ethical standards, and disclosure duties. While the Act does not specifically mention asbestos roofs, the broader principles of property marketing and disclosure apply, especially when hazardous materials like asbestos are involved.
A duty on property practitioners is imposed to disclose all material defects in a property to potential buyers. An asbestos roof, which poses a potential health risk, would likely be considered a material defect that must be disclosed.
To conclude – marketing a property with an asbestos roof is not illegal but it is however mandatory to fully disclose this fact extensively to potential buyers.
Also read the very informative post by Ooba at the following link
https://www.ooba.co.za/resources/asbestos-roof/
