Is an asbestos report of common area required for exchange?

florentian

Thanks for this amazing forum — it's been a great source of information during the conveyancing process and all its vagaries!

I am buying a flat in a purpose-built Victorian building in London. I received my solicitor's report and we were about to exchange. But at the very last minute, MY solicitor asked the buyer's solicitor for an asbestos report of the common area (one stairwell). This report doesn't exist, so it must be commissioned; we are now looking at an unspecified delay.

I only found out about this because the freeholder let me know what was happening directly.

When I objected, my solicitor insisted that this is a legal requirement for the building to have one. She is correct, but what I don't understand is why it's required for *this transaction* to proceed. I didn't ask for it, in fact, I instructed that I do not care about an asbestos report of the stairwell outside. I just spoke with the mortgage broker, who contacted the mortgage company; they also did not request this and would not have issued the mortgage if they felt an inspection were required.

So I'm not sure why this is happening, especially right at the finish line, as it's causing a delay. Can I instruct my solicitor to proceed with exchange without this report?

davidmcn

Yes, you can. It isn't required, it's just to (hopefully) confirm there is nothing asbestos-wise for you to worry about. Though perhaps your solicitor will advise your lender not to proceed without it, in which case for practical purposes it is required...

DoaM

But if the mortgage company have already said* they don't need one ..... ?

* albeit 2nd hand via the broker

davidmcn

DoaM wrote: »

But if the mortgage company have already said* they don't need one ..... ?

* albeit 2nd hand via the broker

Whoever has said that probably hasn't a clue what it is. They're more likely to rely on the solicitor's advice (though they may be prepared to take a view).

DoaM

How long has such a report been a legal requirement, do you know?

@OP ... is this property the first one to transact since such a report became a legal requirement? If yes then that would explain why you're the one impacted by it.

florentian

My understanding is that the requirement is from 2012 (The Control of Asbestos Regulations 2012).

There was one transaction in the building since then, and the report was not requested.

TBagpuss

Although the lender did not require an inspection, that isn't the same as them not requiring confirmation that the legally required report exists and has been checked by the conveyancer, so it's possible that the conveyancer has (entirely properly) flagged up that it is required as part of the normal documentation.

However, if the lender is saying that they are aware that there is no report and that they are happy for the transaction to proceed, then you can instruct your solicitor to proceed without it.

They are right to raise it and to require it, as you might have a financial liability or difficulty selling on / getting insurance if the paperwork is not in order or if there is asbestos which affects maintenance / repair costs in future - you are free to accept that risk if you want to but your conveyancer is likely to explicitly advise against it and record that you are acting against their advice.

I'd suggest that you ask your conveyancer to proceed without it, and if they are not willing to do so, ask them why. As above, it may be that the lender does require the report, even if they did not require an inspection, as it would normally be a standard part of the documentation

florentian

Useful perspectives, thank you. My only remaining confusion is why this didn't come up as an enquiry when the document was first omitted.... or indeed, at any other time before the literal day of exchange.

Moot point though — not much to do but wait for the report, then!

davidmcn

florentian wrote: »

My only remaining confusion is why this didn't come up as an enquiry when the document was first omitted.... or indeed, at any other time before the literal day of exchange.

Are you sure it wasn't asked for earlier, and the vendor's just delayed responding to the enquiry?

florentian

davidmcn wrote: »

Are you sure it wasn't asked for earlier, and the vendor's just delayed responding to the enquiry?

Digging through the report, it was requested in the boilerplate enquiry form, but the freeholder didn't realise it was required (since the law changed in 2012) and wrote "not applicable". I only wish this had been flagged sometime in the months following — certainly before the final report had already been generated and we were due to exchange.