Update on asbestos testing, compensation scheme

Last week, The Brown Couch published a piece outlining a NSW Fair Trading scheme to identify, purchase, and demolish homes containing toxic loose-fill asbestos. Fair Trading's Loose-Fill Asbestos Implementation Taskforce have since clarified some ambiguities about how tenants of affected dwellings may be impacted.

Above: advertisement for 'Mr Fluffy', responsible for installation of the substance 

Most notable is the question of relocation assistance. The fact sheet addressing compensation under the scheme provides that up to $1000 is available per tenant "named on the residential lease". This proviso seemingly excludes those who are considered tenants under the Residential Tenancies Act, but do not have a written agreement between themselves and a landlord. However, relocation assistance will in fact be provided to tenants with oral and/or implied agreements, as well as sub-tenants with written agreements, if they can provide the Asbestos Taskforce with evidence of their status as tenants. Such applications for relocation assistance will be assessed on a case by case basis. 

Also left open was the question of how an owner that had agreed to Government purchase of affected land would go about terminating a tenancy agreement over the property. This is especially pertinent as a landlord cannot terminate a fixed-term tenancy agreement because the property has been sold unless their intention to sell was disclosed before the tenancy agreement was made. The Taskforce has provided  termination will be affected according to the ordinary means available under the Residential Tenancies Act. 

This leaves open the possibility that affected tenants with fixed-term agreements may negotiate the terms of any agreement to end the tenancy early. However, it will of course remain open to landlords to terminate fixed-term tenancies at the conclusion of the term, and to terminate periodic tenancies without grounds. 

It also appears possible that either tenant or landlord may be able to terminate on the grounds that the agreement has been 'frustrated', because the property is uninhabitable. 

Tenants that suspect their home may be affected should contact their local Tenants' Advice and Advocacy Service for assistance. Contact details for the general services operating in Local Government Areas identified as containing homes with loose-fill asbestos are as follows:

- Illawarra and South Coast Tenants Service: 4274 3475
- Northern Sydney Area Tenants' Service: 8198 8650
- Southern Sydney Tenants Advice and Advocacy Service: 9787 4679
- South Western NSW Tenants Advice and Advocacy Service: 1300 483 786
- Western Sydney Tenants' Service: 8833 0933

Aboriginal tenants may also contact the following services:

- Greater Sydney Aboriginal Tenants Service: 9696 0873
- Southern NSW Aboriginal Tenants Advice and Advocacy Service (Murra Mia): 4472 9363
- Western Aboriginal Tenants Advice and Advocacy Service: 6884 0969

Asbestos testing, compensation for tenants

NSW Fair Trading has established a program to identify, purchase, and demolish homes that contain loose asbestos as ceiling insulation. Its Loose-fill Asbestos Implementation Taskforce has identified 28 Local Government Areas, where a company trading as ‘Mr. Fluffy’ installed the toxic substance in residential properties throughout the 1960s and 70s. The LGAs identified include metropolitan and regional areas throughout NSW.

A roof containing loose-fill asbestos

The NSW Government is offering free testing of potentially affected properties before 1 August 2016. Unfortunately, testing is not available for tenants directly, as it must be organised by the property’s owner. Registration for testing is available online, or by contacting Service NSW.

Compensation may be available for tenants of properties that are purchased and demolished under the scheme.

Relocation assistance up to $1000 will be provided to any tenant “named on the residential lease”. It is unclear whether tenants with an oral and/or implied agreement with the landlord would be eligible. These constitute residential tenancy agreements to the same extent as those whose agreement is recorded in writing, per Section 13 of the Residential Tenancies Act. This requirement would also seem to exclude sub-tenants. We hope to clarify these ambiguities soon. 

Tenants are also eligible for compensation up to $1000 for the replacement of “soft furnishings and or/porous materials like clothes, curtains or linen” that are exposed to loose-fill asbestos. Only household items kept in contaminated areas will need to be replaced.

Fair Trading’s website identifies demolition as “the only way to remove the health risk of loose-fill asbestos insulation from an affected property”.

Tenants who suspect their home may be affected should contact their Local Tenants’ Advice and Advocacy Service for assistance. 

Contact details for the relevant general services are as follows:

- Illawarra and South Coast Tenants Service: 4274 3475
- Northern Sydney Area Tenants' Service: 8198 8650
- Southern Sydney Tenants Advice and Advocacy Service: 9787 4679
- South Western NSW Tenants Advice and Advocacy Service: 1300 483 786
- Western Sydney Tenants' Service: 8833 0933

Aboriginal tenants may also contact the following Aboriginal services:

- Greater Sydney Aboriginal Tenants Service: 9698 0873
- Southern NSW Aboriginal Tenants Advice and Advocacy Service (Murra Mia): 4472 9363
- Western Aboriginal Tenants Advice and Advocacy Service: 6884 0969

Fair Trading NSW is also hosting free information sessions in select locations; check their events register.

Asbestos awareness

November is Asbestos Awareness Month.

(The Blue Lamington Drive raise funds for the Asbestos Diseases Research Institute.)

Asbestos is a fibrous mineral with remarkable physical properties – but inhaling the fibres can cause  disability and death (from asbestosis and cancer).

 

Prior to 1987, asbestos was used in a great variety of building products, and used so much that one in three Australian homes still contain it... somewhere. Fibro walls, roofs and fences are what most people think of when they think asbestos, but it's also in brick and weatherboard houses, in the eaves, around the pipes, and under the tiles and floor coverings.

 

Products containing bonded asbestos that are in sound condition are usually safe if left undisturbed. It is when a bonded asbestos product becomes degraded – particularly if it is reduced to powder, through drilling or abrasion – or if the asbestos is in a loose fibrous form, that asbestos fibres can be inhaled and presents a real hazard. 

 

So the standard advice in relation to asbestos products is

• If you don't know whether something contains asbestos, assume it does; and
• Don't cut it! Don't drill it! Don't drop it! Don't sand it! Don't saw it! Don't scrape it! Don't scrub it! Don't dismantle it! Don't tip it! Don't waterblast it! Don't demolish it! And whatever you do... Don't dump it!

As a tenant, you're not likely to be charging around doing renovations and disturbing asbestos yourself, but you should still be asbestos-aware. 

• Report to your landlord any damage to things at the premises, particularly where they contain asbestos. 
• Direct your landlord to NSW WorkCover's asbestos resources page for information on dealing with asbestos safely and legally. 
• Read the TenantsNSW factsheet for more information about your own options.