Hazardous Materials in French Commercial Premises: Who Is Responsible for What

At a Glance: Who Bears What Obligation

The obligations relating to hazardous materials in commercial premises are scattered across the Public Health Code, the Housing and Construction Code, and the Environmental Code — each with its own triggers, responsible parties, and sanctions.

Asbestos: Three Lists, Three Different Regimes

Asbestos is the most extensively regulated hazardous material in French commercial property. All three lists apply only to buildings whose building permit was issued before 1 July 1997.

List A — Friable Materials

List A covers friable asbestos: sprayed coatings (flocages), heat lagging (calorifugeages), and false ceilings. Detection is mandatory in all pre-1997 buildings. If friable asbestos in an advanced state of degradation is found, treatment (containment or removal) must in principle be completed within 36 months of the control results being delivered, with one possible extension of up to 36 months (C. santé publ., Art. R. 1334-29-2).

List B — Non-Friable Materials (the DTA)

List B covers non-friable materials: walls, partitions, cable ducts, fire-doors, ducting, roofing, cladding. In commercial leases, the dossier technique amiante (DTA) is at the landlord's charge and is mandatory for all commercial premises in buildings whose building permit predates 1 July 1997. The DTA contains: the List A and B detection reports, the conservation status of identified asbestos-containing materials, general safety recommendations, and a summary sheet communicated within one month to occupants and to employers where the building contains workplaces.

List C — Demolition Diagnosis

List C applies when demolition or major renovation is planned. The works owner — whether landlord or tenant, depending on who undertakes the works — must carry out a diagnosis of asbestos-containing materials before applying for a demolition permit and before accepting quotes or placing contracts. This is the most extensive list in terms of the number of materials to be diagnosed.

Lead

The risk of lead exposure assessment (constat de risque d'exposition au plomb) must be annexed by the landlord to the commercial lease only where the building was constructed before 1949 and a part of it is used for residential purposes (C. santé publ., Art. L. 1334-7). A purely commercial building without any residential component is not subject to this obligation, regardless of its age.

Termites

The primary obligation rests on the occupant — in commercial lease practice, the tenant. As soon as the occupant becomes aware of termites or other xylophagous insects in a building, they must declare this to the mairie within one month of discovery (CCH, Arts. L. 133-4 and R. 133-3). Failing an occupant, the obligation falls on the owner; for common parts, it falls on the co-ownership syndicate. There is no obligation to annex the termite declaration to the commercial lease.

Termite repérage and treatment obligations in contamination perimeters (périmètres de lutte) and in prefectoral containment zones are borne exclusively by the landlord — these are owner obligations, sanctioned by a 5th class fine of €1,500. Where the tenant carries out demolition works and the materials contain termite contamination in a zone delimited by prefectoral order, the tenant bears the obligation to destroy those materials on site or have them treated and incinerated.

Legionella, Radon, and Natural Gas

Legionella

Air-cooling towers that disperse water droplets are now classified as ICPE installations (Decree n° 2004-1331 of 1 December 2004). Depending on type and capacity, they are subject either to declaration or to authorisation. The operator — generally the tenant in a commercial lease — bears the ICPE obligations. The legionella prevention regulation also applies to hot water production, storage, and distribution installations in hotels, tourist residences, and other establishments open to the public with shower points at risk.

Radon

The radon measurement obligation applies to owners or operators of specific categories of établissements recevant du public (ERP): educational establishments, health and social establishments, thermal establishments, prisons, and establishments receiving workers. The obligation currently applies only in 31 designated départements where natural radon concentrations are elevated. If measured levels exceed the thresholds fixed by decree, works must be carried out. The lease must allocate between landlord and tenant responsibility for monitoring and compliance.

Natural Gas

The maintenance of internal gas installations — those that are off the public distribution network — and the upkeep of the gas appliances served by them falls on the user or the person who has contractually assumed responsibility for the installation. In a commercial lease context, this is generally the tenant. The parties can allocate the responsibilities for monitoring, maintenance, and safety of purely private installations in the lease.

Indoor Air Quality in Certain Public Establishments

Article L. 221-8 of the Environmental Code imposes mandatory indoor air quality monitoring on owners or operators of certain ERP. The establishments concerned are: collective child care facilities for children under 6; leisure facilities for children; primary and secondary educational establishments and vocational training centres; social and medico-social establishments; prisons for minors; and covered physical activity and sports facilities. Monitoring must be carried out every 7 years, or every 2 years if results exceed threshold values. The three pollutants monitored are formaldehyde, benzene, and carbon dioxide. Non-compliance is a 5th class criminal contravention with a fine of €45,000. Where the lease covers an ERP of these types, the lease must specify whether the landlord or the tenant bears this surveillance obligation.

Demolition and Construction Waste

Pre-Demolition Diagnosis

Before any demolition or major renovation, the works owner must establish a diagnosis of the waste that will be generated (CCH, Arts. L. 111-10-4 and R. 111-45). This obligation applies to: buildings over 1,000 m²; and buildings that have hosted agricultural, industrial, or commercial activity involving hazardous substances. The diagnosis must describe the nature, quantity, and location of constituent materials and residual waste, and identify possibilities for reuse or recycling. Non-compliance exposes the works owner — whether landlord or tenant — to a 5th class fine of €45,000 and to criminal sanctions.

Construction Site Waste (BTP)

Any business that produces or ships waste from construction activities must keep a waste tracking register (C. env., Art. R. 541-43), which must be retained for three years. Dangerous waste — including asbestos-containing materials, tarred products, and products listed in Annex I of Article R. 541-8 — requires a specific treatment procedure. The principle of extended producer responsibility (REP) applies: the producer of the product at the origin of the waste bears responsibility for establishing collection and treatment systems.

This article is for general information and educational purposes only. It does not constitute legal advice and does not create a lawyer-client relationship. Laws and regulations may have changed since publication. Always seek qualified French legal and technical advice on environmental compliance obligations before concluding a commercial lease.