Landlord liable for asbestos in previous tenant's flooring

A housing association leased a property to new tenants. The property had been rented to the previous tenant since 1971. The dwelling contained a floor tarp. The housing association requested that the floor tarp be removed at the end of the lease, which the tenant did. However, this left behind glue and foam residue. The new tenants subsequently objected to these residues on the grounds that the floor had not been delivered cement-covered. The housing association then commissioned a blotting company to remove the residue. This company took a sample of the floor covering because it could not immediately identify the residue. The examination revealed that the remnants qualified as asbestos suspect. This resulted in the home having to be cleaned by an asbestos remediation company and the new tenants having to vacate the home. They could not enter the home for some time and, in addition, some of their property was destroyed.

The tenants sued the housing association and claimed compensation for consequential damages. The proceedings revolved around the applicability of Section 7:208 of the Civil Code, which provides that the landlord is obligated to compensate for damages caused by a defect if the defect was present when the contract was entered into and the landlord knew or should have known of the defect at the time. The parties agree that the presence of the asbestos-containing substances qualifies as a defect. The parties further agree that both parties were not aware of the presence of asbestos at the start of the lease.

The issue in the proceedings is whether the landlord should have known about the defect. The housing association took the position that there was no reason for it to examine the flooring. The court did not go along with this. The court ruled that the previous tenant had occupied the leased property since 1971. The housing association could thus know that the floor covering had been laid a long time ago, precisely at a time when asbestos was in widespread use. Furthermore, it appeared that the housing association was alert to the presence of asbestos in its policy plans. The court took into account that the housing association was a professional landlord who could be assumed to be familiar with completions. It could therefore have had a sample taken of the flooring to determine whether asbestos could be present. However, the housing association failed to do so. The Court of Appeal therefore ruled that the housing association should have known about the defect and was thus liable for consequential damage. The Court of Appeal therefore concluded that the damage caused by the defect must be compensated by the housing association.

The lesson to be learned from this judgment is that a professional landlord should be alert to the possible presence of asbestos, especially if the property has been occupied for a long time. A professional landlord is considered familiar with completions and may know, or at least suspect, that asbestos may be present.