A Blood-Sucking Enemy

Governments are clarifying liability for bedbug infestations, requiring landlords to stay on top of new laws.

September 1, 2011

Bedbugs are a growing problem in many communities, thanks in part to a rise in international travel and increased bedbug resistance to long-used pesticides. In New York alone, calls to the city health department about bedbugs rose from 79 in 2004 to 4,600 two years later. And far more complaints are made to pest control companies.

Infestations are putting all property types at risk, from posh hotels to ­single-family homes. In response, many municipalities and states are stepping up efforts to address liability and other issues related to infestations.

In Maine, for example, landlords must inspect a unit within five days of being notified by a tenant of possible infestation and contact a pest control specialist within 10 days. If an infestation is verified, landlords have to take steps to treat the problem. Infested vacant units can’t be rented.

In all, about a dozen states last year considered bedbug-related legislation, and in Congress, two bills are in the early stages of consideration. Municipalities are looking at laws, too.

Requirements Vary by State

As a general matter, bedbug problems are covered under contract and tenant-landlord laws, which are typically determined by state statute and regulations and local ordinances. So, to ensure your rental agreements and practices are in legal compliance, you need to be familiar with those requirements.

In Wisconsin, liability for infestation of a rental unit is assigned to tenants if they bring bedbugs into their units, so they can be made to cover eradication and damages, such as replacing furniture. Yet landlords still have a duty to maintain the property in a habitable condition for the other tenants, so liability falls to the landlord or owner if an infestation spreads to other units.

To minimize this risk, landlords need to act promptly and professionally when they suspect a unit is infested. What they shouldn’t do is try to save money and remediate an infestation themselves. Eliminating bedbugs isn’t just a matter of spraying a pesticide. Proper elimination is complicated, so taking a shortcut only increases the chances of the problem getting bigger.

Cause is Rarely Clear

Because of the nature of bedbugs and how they spread, it’s often difficult to find the source of the infestation, so showing a tenant as the cause isn’t easy. It’s particularly difficult in a multifamily ­building because infestations travel from unit to unit.

Because of the difficulty in treating infestations and in assigning cause, owners need to limit their property’s exposure up front. One way to do that is including protective clauses in rental agreements to regulate behavior. For example, a clause could make it a violation to bring discarded furniture in off the curb. That way, if a tenant is known to have brought in furniture, there is a clear lease violation and grounds for eviction without having to show the source of infestation. That’s a better approach than simply assigning liability and setting a predetermined fine for bedbugs. In many states, that may not be enforceable, and you may have no right to evict tenants as long as they pay the fine.

It’s impossible to overstate the importance of documenting the condition of units before, during, and after an infestation, what actions have been taken, and the costs of remediation. By having a clear paper and photo record of rental practices and prompt responses to possible infestation, ­owners minimize both bedbug infestations and liability for tenant claims that the landlord failed to take steps to protect them.

On the for-sale side, when listing a property with a history of infestation, consider whether that infestation needs to be disclosed to buyers. Depending on state law requirements and how long it’s been since an infestation, your sellers might need to disclose the condition and their remediation steps.

More Online

Learn more about identifying and treating bedbugs in the archived version of REALTOR® Magazine’s webinar, “Bedbugs: Know Them, Eliminate Them,” at RealtorMag.REALTOR.org/webinars.

Juscha E.M. Robinson is a partner with Herrick & Kasdorf, LLP, in Madison, Wis. She practices primarily in the areas of real estate, tenant-landlord relations, estate planning, and probate. She can be reached at juscha@herricklaw.net.