More Bedbug Issues
With the well publicized resurgence of bedbug infestations, landlords must take a more aggressive approach to suspected or known presence of bedbugs. In addition to habitability, health, and safety requirements as currently mandated by landlord-tenant laws, landlords in states with bedbug legislation must now incorporate specific additional policies for disclosure and mitigation of bedbug infestations.
Recently Arizona joined Illinois, Maine, and New York in taking initiative to enact comprehensive legislation to assign various duties and responsibilities for landlords, tenants, and pest control companies to prevent, manage, and control bedbug infestations. Several other states and certain local municipalities have similar bedbug legislation pending or have commissioned further study into the prevention and treatment of infestations.
For example, under the new Arizona law, a landlord has the followings obligations:
- To maintain the dwelling unit free of an infestation of bedbugs.
- To provide educational material to existing and new tenants. Educational material may include (1) a description of the measures that may be taken to prevent and control bedbug infestations, (2) general information about bedbugs including a description of appearance, (3) description of behaviors that are risk factors for attracting bedbugs (such as purchasing or using discarded mattresses, furniture, clothing, or traveling without taking proper precautions against transport of existing infestations, and (4) information as provided by federal, state, or local health agencies or housing agencies.
- To refrain from entering into a lease agreement with a tenant for a dwelling unit that the landlord knows to have a current bedbug infestation.
- To either personally or by landlord’s licensed pest control applicator visually inspect the dwelling unit for bedbugs within 7 business days after receiving written or electronic notice from the tenant of a possible bedbug infestation.
- To start the process of mitigation of bedbugs in the dwelling unit within 7 business days after finding evidence that a bedbug infestation exists in the dwelling.
- To use for mitigation a pest control applicator who is licensed pursuant to Arizona Statutes, Title 32, Chapter 22. In addition, unless the landlord is a licensed applicator, the landlord shall not use any pest control techniques that constitute mitigation.
- To provide the tenant with a written notice of the bedbug mitigation treatment protocol at least 3 business days before the initial treatment date. Notice will be deemed received by the tenant on the date the notice is personally delivered or mailed first class.
- To be responsible for the bedbug mitigation expenses for the dwelling unit and any surrounding units that are infested unless otherwise provided for.
Under Arizona law, a tenant has the following obligations in respect to a bedbug infestation:
- To maintain the dwelling unit free of an infestation of bedbugs.
- To not move material that is infested with bedbugs into a dwelling unit.
- To provide the landlord written or electronic notification of the presence of bedbugs in the dwelling unit within 3 business days if the tenant knows of the presence of bedbugs. Providing notice to the landlord pursuant to this obligation constitutes the tenant’s permission to the landlord to enter the dwelling unit for the sole purpose of inspecting for or the mitigation of bedbugs.
- To allow the landlord and landlord’s licensed pest control applicator access to the dwelling unit after receiving notice from the landlord of a bedbug inspection or mitigation.
- To comply with the bedbug mitigation protocol as established by the licensed applicator. This may include pretreatment activities, temporary evacuation of the dwelling unit, post-treatment activities, and the obligation to report to the landlord within 3 business days of ineffective treatment or re-infestation.
- To not apply or permit any unlicensed person to apply any bedbug control techniques that constitute mitigation
- To provide written notice to the landlord of the tenant’s intention to correct conditions at the landlord’s expense if the landlord fails to inspect and if necessary mitigate a bedbug infestation within the prescribed timeframe. If the landlord fails to correct the condition within 10 business days after being notified by the tenant in writing, the tenant may cause the work to be done by a licensed pest control applicator, submit to the landlord an itemized statement for the pest control services and deduct from rent due the actual and reasonable costs of the pest control treatment. Such costs to not exceed five hundred dollars or one-half of the monthly rent whichever is greater.
- To be held financially responsible for bedbug mitigation expenses for the dwelling unit and surrounding units that are infested if the tenant fails to comply with any of the above obligations.
In addition, the new Arizona legislation provides that the landlord and tenant of a single-family residence may agree that the tenant is responsible for bedbug mitigation. A landlord is deemed to have successfully mitigated a bedbug infestation upon completion of bedbug treatment by a licensed pest control applicator. The new legislation does not limit the landlord’s or tenant’s rights and obligations and except as specifically provided, does not create a cause of action against (1) a landlord, landlord’s employees, officers, agents, and directors by a tenant or tenant’s guests for any damages caused by bedbugs and (2) a tenant by a landlord for any damages caused by bedbugs.
Mitigation process by a pest control applicator is defined as the attempt to eliminate or manage the infestation of bedbugs by poisoning, spraying, fumigating, trapping, or any other recognized and lawful pest control method, including repeated applications of any treatment particularly in areas where bedbugs are likely to congregate. Mitigation expenses as defined in the statute mean reasonable and necessary costs of pest control treatment and may include cleaning, removal and replacement of flooring if reasonably required by the degree of infestation. Infestation is defined as the presence of bedbugs is sufficient to materially affect the health and safety of tenants and tenants’ guests. Surrounding unit is a dwelling unit that shares a common wall with or is directly above or below another dwelling unit.
Landlords must have an adequate bedbug procedure established within their leases as a normal part of their rental policy. They should also budget for the potentially high cost of prevention and/or mitigation.
Landlords should require that the pest management company provide a detailed written description of the bedbug treatment program that they will follow, as this can provide additional legal protection. Also, landlords should keep detailed treatment records because disclosure of treatment history is required by law in some states and the records may be important in defense against lawsuits. Record keeping is also important because states are beginning to require disclose of past history upon sale of real property.
Even when the law does not require professional treatment of bedbug infestations, self-help treatments are rarely effective and not advisable, as they come with great risks, notably an increased probability of lawsuits. Unlike roaches, bedbugs do not ingest poison and die later. It is of no value to use a bug bomb or fogger. Since bedbugs can go as long as one year between feedings, a “wait and see” attitude to starve them out is not feasible.
While a landlord may successfully defend against litigation, the costs of doing so will no doubt be much higher than paying professionals to deal with the bedbug infestation in the first place. Immediately attacking the infestation utilizing professionals will go a long ways to a successful defense in court. Furthermore, an infestation in one unit will soon affect the whole building if left uncorrected. Ignoring the problem or attempting to deal with it yourself will only increase potential liability.
Until recently, although bedbugs can cost landlords and property management firms lost rent, battered reputations, and lawsuits – despite the fact that it is usually the tenants who bring the bed bugs into apartments and rental homes – one of the few consolations has been that bedbugs do not carry any known pathogens or diseases. However, very recent news has suggested that this is about to change, significantly further increasing the potential liability for landlords and management companies.
Doctors at the inner-city hospital in Vancouver, BC had noticed two things happening in their neighborhood— a boom in bedbugs and a boom in cases of MRSA, or methicillin-resistant Staphylococcus aureus, a bacterial infection highly resistant to some antibiotics. Dr. Marc Romney, a medical microbiologist at St. Paul’s Hospital/Providence Health Care, decided to see if the two were related.
Researchers took five bedbugs that patients had brought in and crushed and analyzed them. They found MRSA on three of them. On the other two they found VRE – vancomycin-resistant enterococcus faecium, a less dangerous form of antibiotic-resistant bacteria.
If left untreated, MRSA can cause pneumonia or infections of the skin, blood, and joints. The bacterium, once confined to hospitals, has been increasingly found in community settings like locker rooms and gyms, and kills 19,000 Americans each year. Recently, the FDA approved a quick diagnostic test that promises to help infected patients receive treatment more quickly.
Dr. Romney stated that it is not clear whether the bacteria (1) originated with the bedbugs or (2) the bugs picked them up from people who were already infected. Both are scenarios are often seen in hospitals. And experts have been far more worried about nurses and other health care workers spreading the bacteria than the bedbugs, Romney said, which is why the finding, although disturbing, is inconclusive.
Furthermore, it’s also not clear whether the bacteria existed on the bed bugs or in them. That is, were the bed bugs carrying MRSA on their backs or were the bacteria living and growing inside them? Either way, it’s not good news: if bed bugs are capable of carrying and transmitting MRSA the way a mosquito spreads malaria, it could mean a whole new vector of human disease.
Further studies are needed to characterize the association between S. aureus and bedbugs and it may turn out that the results of this small study do not really mean that there is additional risk related to bedbug infestations. However, in the meantime, since landlords potentially face increasing risk due to the possible danger of MRSA infections, the prudent landlord will be increasingly vigilant against infestations and take increased steps to deal with them when found.
In conclusion, whether to minimize existing risks of lawsuits, to obey existing and new state laws and local ordinances specific to the matter, or to reduce exposure to even greater potential liabilities if it turns out that bedbugs can in fact spread MRSA, landlords and property managers must take certain steps. They must educate themselves regarding existing legal requirement, keep informed regarding new requirements, and institute adequate procedures for prevention and eradication of infestations.
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