Q: We’ve discovered a few bedbugs in our new apartment, crawling out of the seams along the floor. We’re freaked out! The landlord says it’s no big deal, and that he’ll have an exterminator come by early next week. We haven’t even unpacked; we’re tempted to move out, but that would be breaking a yearlong lease that has just started. Is there any legal justification for us to do this? –Adam and Sue
A: Because you don’t mention any encounters before moving to your new home, those bugs were probably in the apartment before you moved in.
Although it’s possible that they came with you and your boxes (perhaps they hung out in the mover’s van and hitched a ride on your stuff), the more reasonable explanation is that they have been waiting in the walls of this apartment since the last resident left. Or they’ve migrated to your apartment from an adjoining unit.
The point is, the stronger your argument that you didn’t bring the critters into the apartment, the stronger your right to take action.
Tenants in every state but Arkansas are entitled to "fit and habitable" housing, which includes the absence of vermin. Bedbug infestations are unquestionably vermin. Most of the time, however, it’s difficult to determine who (landlord, tenant, neighbor, or some other visitor) introduced the bugs.
But when it’s clear that they were there from the outset of your tenancy, you’re in a good position to claim that the rental was not initially fit and habitable, through no fault of yours. In that event, tenants can refuse to move into a substandard rental and should not be held to the lease.
It’s no different than if you were to hand the landlord a rubber check for the first month’s rent: Upon discovering that the check bounced, the landlord would not have to hand over the keys. So too with an unlivable apartment. If it doesn’t pass habitability standards, you don’t have to take it, and the deal’s off.
But you have moved in, even though you’re sitting amid boxes. This changes things a bit. Once you’ve taken possession, you have to give the landlord a reasonable time to fix the habitability problem, if possible. Bedbug infestations can be addressed, and aggressive approaches often solve the problem.
The key question here is: What is a reasonable time to give the landlord? Will sending in the professionals "next week" suffice?
Until recently, bedbugs were not considered a serious problem. Yes, they are annoying, creepy and uncomfortable, with the ability to inflict unsightly and itchy bites, but not a serious health threat. Unlike lead paint, asbestos and the mycotoxins from a few molds, they were thought to be relatively harmless.
Indeed, the Centers for Disease Control still tells us, "Bed bugs, a problem worldwide, are resurging, causing property loss, expense, and inconvenience. The good news is that bed bugs do not transmit disease (emphasis added)."
But this common wisdom may be evolving. In an advance electronic publication of an article slated to appear in Emerging Infections Diseases, researchers in Vancouver, Canada, reported the discovery of particularly nasty bacterium on bedbugs that were taken from patients admitted to an inner-city hospital.
The bugs were carrying methicillin-resistant Staphylococcus aureus (MRSA) and vancomycin-resistant Enterococcus faecium (VRE). These bacteria can cause serious staph infections that are very resistant to antibiotics.
The study’s authors concluded that they might have discovered a new pathway, or vector, for the transmission of these bacteria. Much like the mosquito carries malaria, perhaps the bedbug carries these bacteria, dropping them off as it bites its human host.
However, further study is needed to determine whether the bugs are simple transmitters or have the staph infection themselves, and even whether the bugs infected the humans or the other way around. The researchers also noted that their findings occurred in an area of dense, poor housing, whose residents already had a high incidence of MRSA infections.
The implications of this study for landlords and tenants are significant. A widespread bedbug infestation has always qualified as a habitability problem, but these findings make the bugs’ appearance potentially much more dangerous than previously thought.
If they are capable of spreading disease, the speed with which landlords should deal with them goes up. Maybe sending in an exterminator "next week" is no more reasonable than saying, "I’ll deal with that gas leak tomorrow."
Q: I took a class on what I need to know as a new landlord, and one of the subjects was fair housing. The teacher stressed that we can’t discriminate against children. Then I noticed that my rental application, which comes from a very reputable legal publisher, asks the applicant to list the names and ages of minor children. Isn’t this illegal? –Heidi H.
A: You’ve taken an important step by attending a class on the ins and outs of being a landlord. And certainly fair housing is a big part of what any landlord needs to know.
Discrimination against families with children is illegal, whether it’s blatant ("No children allowed") or subtle ("Mature community"), intentional ("I don’t like having kids underfoot"), or paternalistic or clumsy ("This neighborhood isn’t good for families").
Although it’s possible that a landlord could use the information provided on the application to illegally deny the rental to a family, there’s another interpretation of the purpose of the question that would probably keep that landlord out of legal trouble.
The landlord is asking this question in order to know whether additional residents should be added to the lease. In other words, if a child who is not a minor will be living with the family, that "child" should properly be a co-tenant, who should be added to the lease.
Just like the parents, that child then becomes "jointly and severally responsible" for paying the entire rent and abiding by the terms of the tenancy.
Although it may seem odd to the parents, as far as the landlord is concerned, that 18-year-old is no different than a roommate. If he’s the only one with a job, for example, the landlord can look to him for the rent; if he violates the lease, the landlord can terminate and evict if necessary.
Landlords who don’t take the step of adding adult children to the lease have in effect allowed the tenants to have a long-term guest. As any landlord knows, this is a recipe for problems: The landlord has no legal relationship with the guest and no right to evict him or demand rent from him.
To make sure that the application doesn’t lead to discrimination claims, the landlord will need to make sure that he does not in fact use the information to screen out families with children.
Being able to show a fair housing officer a file cabinet full of leases to which adult children were added (and a building with at least some apartments in which minor children are living) should resolve any problems that might come up.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at [email protected].
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