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Bed Bugs Revisited by – Michael A. Brennan, Esq.

Posted on 28. Feb, 2012 by in all, Magazine Articles

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Potential Link Between Bed Bugs And Disease Could Raise Landlords’ Potential Liability And Provide Tenants With A Stronger “Habitability” Defense
Most landlords have already heard the news about the increasing rate of bed bug infestations in rental housing units across the country. In fact, several of my clients have already had tenants use bed bugs as the basis for a “habitability” defense in eviction actions for non-payment of rent. However, unless the entire property is infested, judges have generally shown restraint in permitting tenants to escape their rental obligations merely by claiming their unit had bed bugs. However, that may change soon.

Until recently, no one thought bed bugs were likely to make tenants seriously sick. Roaches? Sure. Rodent infestation? Absolutely. But bed bugs? Unlikely. In fact, the Centers for Disease Control (CDC) has stated “[b]ed bugs, a problem worldwide, are resurging, causing property loss, expense, and inconvenience. The good news is that bed bugs do not transmit disease.” (See http://www.cdc.gov/parasites/bed bugs) Furthermore, most landlords’ buildings experience only isolated infestations affecting only one or two units. In that setting, a tenant’s habitability defense based on the existence of bed bugs can often times be overcome. But CDC’s position may change quickly, catapulting bed bugs into the same class as roaches and rodents and, therefore, causing cities, county health departments, and judges alike to take a more stringent approach with landlords whose buildings show evidence of bed bugs.
A May 2011 study has given rise to the possibility that bed bugs may be carriers of infectious diseases. Although more investigation is required, if the study’s preliminary findings turn out to be correct and it is determined, conclusively, that bed bugs are carriers of disease, overcoming a tenant’s defense that the landlord breached the warranty of habitability by failing to eradicate the bed bug problem from the tenant’s unit  may become much more difficult for a landlord.

Researchers in Vancouver reported the discovery of particularly serious bacteria on bed bugs taken from patients who were admitted to an inner-city hospital and reported their findings in an advance publication of an article scheduled to be published in the CDC journal Emerging Infectious Diseases. The bed bugs carried methicillin-resistant Staphylococcus aureus (MRSA) and vancomycin-resistant Enterococcus faecium (VRE). These bacteria cause staph infections that are very resistant to antibiotics. However, further study is needed to determine whether the bugs are simple transmitters, have the staph infection themselves, or even whether the bugs infected the humans or the other way around. It should be noted that the findings occurred in an area of dense, poor housing, where residents already had a high incidence of MRSA infections.

What This Means for Landlords
The potential consequences to landlords of the study are significant. Whereas a widespread bed bug infestation has always qualified as a habitability problem which, if not addressed, may 1) permit tenants to withhold rent until the habitability problem is fixed, 2) fix the problem themselves and deduct the costs for doing so from the rent, and 3) use the infestation as a legitimate defense in an eviction action for failure to pay rent, under California law, landlords have a reasonable time to fix a habitability problem before tenants can utilize those remedies or the habitability defense.

But, if bed bugs are proven to be carriers of staph infections and, thus, a threat to the health and safety for tenants, the stakes are raised dramatically. A “reasonable time” may become much shorter than previously allowed. Furthermore, landlords could then be exposed to a significantly higher level of personal liability where a tenant contracts an MRSA infection as the result of the landlords’ alleged inattention to the problem. In that case, the tenant’s measure of damages may go far beyond what it would be if the bed bugs’ bites were merely annoying. The best approach for landlords concerned about the possibility of bed bugs in their rental units is to institute a proactive and reactive policy.

On the proactive level, owners should treat the situation seriously. Have a well-defined policy and plan of action established in advance which includes training managers and/or employees to identify the signs of infestation. Landlords should also maintain a log of their inspections of units, as well as the findings in each unit. (You are inspecting your unit at least once a year, aren’t you?) Also, contact your pest control company in advance to determine whether they are properly equipped to handle bed bugs is wise.  If they are not well versed in bed bugs and their extermination, switch to a company that is. A reputable company will have literature for both the landlord and tenant on bed bugs, where they come from, and how to properly prepare a unit for treatment.

Additionally, landlords should incorporate changes to their tenancy documents, including an expanded “move in condition” statement, in which the parties acknowledge that the unit is free from all infestations including, but not limited to, bed bugs. Additionally, landlords should incorporate bed bug specific clauses and/or addendums into their rental agreement documents in which the tenant is required to both notify you immediately of the presence of bed bugs and fully co-operate in the treatment. Such documents, if properly worded, shift at least some of the responsibility of fighting bed bugs to the tenant.
As for the reactive component, once the presence of bed bugs is suspected, landlords should address the situation immediately. Respond to a tenant’s complaints right away and, if appropriate, use the opportunity to inspect adjacent units. If it is determined that bed bugs do exist in a unit, contact your extermination company right away, arrange for a treatment of any affected unit, and provide the tenant with the literature mentioned above concerning the proper preparation. Once the unit has been treated, conduct a follow-up inspection with the exterminator to be certain the treatment was effective.

Remember, cities and counties are beginning to incorporate bed bugs into their municipal code sections dealing with vermin and rodent infestation. The inclusion places the burden of keeping the units free of bed bugs on the landlord. In the event the study mentioned above determines conclusively that bed bugs carry serious diseases and related health hazards, landlords can be certain that an increase in citations for bed bugs will occur. Additionally, courts will quickly recognize the legitimacy of bed bugs as a basis for the tenant’s “breach of the warranty of habitability” defense for failing to pay their rent. Remember, in order for a tenant to successfully utilize a “habitability” defense against an eviction for non-payment of rent, they must establish that they gave the landlord notice and a reasonable amount of time to fix the problem. As stated above, the definition of “reasonable” may become very short very soon.

The foregoing information is presented and intended to address the topic(s) covered above in a general nature.  Specific situations and their facts should be presented to your attorney for review.  The Brennan Law Firm is one of the fastest growing and most experienced landlord-tenant law firms in Southern California, representing landlords exclusively in evictions, negotiations, and judgment enforcement. Mr. Brennan may be reached at (626)294-0500, or toll free at (855)285-2230. Visit our website at www.MBrennanLaw.com for more information.