Where asbestos actually bites in a transaction
In residential conveyancing the failure mode is post-completion discovery during works — the buyer instructs a builder, the builder refuses to start without a Refurbishment Survey, and the buyer's first instinct is to look at the seller's replies to enquiries. In commercial conveyancing the failure mode is a stale or absent Management Survey attached at Schedule and relied on by the tenant under a full-repairing lease. Both are recoverable pre-exchange with a short independent instruction; both are expensive to unwind after completion.
CPSE 1.15 — reading the reply properly
CPSE 1.15 asks for (a) copies of any asbestos surveys, (b) the current asbestos register, (c) the written management plan, (d) details of any asbestos-containing materials known to the seller and (e) any HSE correspondence. Replies of 'not so far as the seller is aware' are common and technically valid where the seller has never commissioned a survey, but they do not discharge the buyer's post-completion Regulation 4 duty. Where the reply is negative, treat it as 'no survey exists' rather than 'no asbestos exists' and price accordingly.
TA6 and residential
The 5th edition TA6 (2024) added an explicit asbestos question. Sellers rarely have documentary evidence; the honest answer is usually 'not known'. Where the property is pre-2000 and the buyer plans works within 12 months, a short pre-exchange Management Survey (£195–£295 + VAT, 3–5 working day turnaround) removes the largest single mid-works surprise and gives the buyer a document that transfers with the property.
Warranty carve-outs and collateral warranties
On commercial transactions with residual construction warranties, asbestos discovery is routinely carved out of the professional-consultant collateral warranty. This means a defect first surfacing after completion is uninsured. Where a Refurbishment & Demolition Survey pre-dates the works giving rise to the warranty, the carve-out is defensible; where it does not, it is a client-money exposure. Ask for the R&D Survey as a condition precedent to accepting the warranty.
Instructing an expert report for litigation
Elements Surveying Group acts as CPR Part 35 compliant single joint expert and party-appointed expert on asbestos disclosure, exposure and remediation-cost disputes. Typical instructions include historic exposure quantification, remediation-cost review of a contractor's quotation, and forensic re-examination of a challenged survey. Reports are issued within 15 working days of instruction with the Part 35 statement of truth appended.
Printable checklist
Pre-exchange asbestos checklist for solicitors
- Confirm the property's original construction date and any pre-2000 extensions
- Raise CPSE 1.15 (commercial) or TA6 asbestos question (residential) in full
- Obtain and review any surveys, register and management plan the seller holds
- Flag stale surveys (>5 years) as requiring reinspection, not fresh replies
- Where no survey exists on pre-2000 stock, price a pre-exchange Management Survey
- For buyers planning works, condition exchange on a Refurbishment Survey
- Review collateral-warranty asbestos carve-outs against the underlying R&D Survey
- Retain the survey report on the completion file — it transfers with the property
Frequently asked questions
Is a pre-exchange asbestos survey a legal requirement?
No. There is no statutory obligation on either party to commission a survey pre-exchange. The commercial reality is that a buyer completing on pre-2000 stock without one is inheriting an unpriced liability, and a solicitor who does not raise the enquiry cleanly is inviting a professional-negligence complaint if disclosure is later found to be incomplete.
How quickly can you turn a pre-exchange survey around?
A domestic Management Survey with UKAS 17025 lab analysis is 3–5 working days from instruction. Commercial Management Surveys on single-building instructions are typically 5–7 working days. Emergency same-week slots are available for exchange-critical files.
Do you act as a single joint expert?
Yes. We act as SJE and party-appointed expert on asbestos disclosure, exposure and remediation-cost disputes under CPR Part 35, with reports issued within 15 working days of instruction.
The seller's survey is eight years old — is it still usable?
Not on its own. A Management Survey older than 12 months without a documented reinspection cycle should be treated as evidence that asbestos was once found, not as a current record. Commission a reinspection or a fresh survey and rely on that.