48-hour bedbug rule may not fly

Rent it Right

Q: I’ve just signed a lease that has a clause about bedbugs. It says that I must report any evidence of bedbugs in my apartment within 48 hours of seeing it, and that if I don’t, I’ll be responsible for the cost of getting rid of them.

The lease also makes me agree to inspection without prior notice, when the purpose is to check for an infestation. Are these legal provisions? –Marcus D.

A: Like many landlords, your landlord is getting serious about detecting and getting rid of bedbugs. He may have had trouble in the past with tenants who had the problem but failed to report it.

Some tenants think they can handle it on their own; some are afraid of retaliation if they inform the landlord; and some are just in denial or too embarrassed to bring it up. The consequence of delay is often a building-wide infestation, which is a huge problem for other residents and the owners.

Your landlord’s idea of holding you responsible for eradication costs if you fail to report an infestation within 48 hours is similar to a provision in a bill being considered in Iowa, House Study Bill 520.

That bill goes quite a bit further, however: Tenants who fail to report bedbugs will be responsible for building-wide remediation. The Iowa bill also provides that a tenant who doesn’t report an infestation within seven days of moving in is acknowledging that the unit is bedbug-free.

Interestingly, the state’s attorney general has come out against the bill, pointing out that its provisions remove any incentive for landlords to act on their own. And expecting every tenant to recognize an infestation may be asking too much if tenants are not aware of the telltale signs of bedbugs.

It’s one thing for legislators to change the rules. Judges will enforce these changes unless there’s something seriously wrong, public policy-wise, about the new regime. But your landlord is trying to change the rules on his own, without any help from the Legislature. And here is where your landlord may have a problem.

First, what about that "no bugs within 48 hours, it’s bedbug-free" acknowledgement? Presumably, if an infestation appears one week into the tenancy, the landlord can argue that it’s the new tenant who introduced them.

Consequently, the landlord will argue, the tenant should pay the remediation costs. But this reasoning ignores a fact of bedbug life: These hardy creatures can go dormant and live on for months, without a source of food, then spring to life when food (a tenant’s warm body) appears.

In other words, bugs in a vacant apartment may well simply hang out for a while — more than 48 hours after the new resident moves in — before becoming active. Their activity does not mean that the new tenant brought them with him.

Second, the provision that allows for no-notice entry to deal with a bedbug problem may run afoul of your state’s access laws. Most states regulate how much notice a landlord must give before entering, though all allow entry in case of an emergency.

A bedbug infestation, albeit nasty, is not an emergency at the level of leaking gas or billowing smoke. If your state has notice requirements, asking you to waive your rights to notice so that the infestation can be addressed will violate your state’s law.

Q: I need to break my lease to take a job in another city. My lease says that I will be responsible for the landlord’s costs to ready, advertise, show the unit, and screen any replacement. Is this legal? –Rich S.

A: When tenants break a lease without legal justification, they are still responsible for the rent for the balance of the lease term. However, many states require landlords to use reasonable efforts to re-rent the unit; once a new tenant moves in, the original tenant’s responsibility ends.

In all states that impose this "duty to mitigate," if the landlord fails to take steps to re-rent, the tenant is off the hook. On the other hand, if the landlord is able to find a new tenant only at a lower rent (perhaps the market has cooled), the tenant remains responsible for the difference.

Whether the lease-breaking tenant is also responsible for the landlord’s costs to re-rent is not so clear, however. A few state laws say so directly.

For example, Washington allows landlords to collect their "actual costs" of finding a new tenant (see Washington Revised Statute Section 59.18.310). Arizona effectively allows the same thing, by declaring that the security deposit of a tenant who abandons the rental is forfeited, to be applied to "any accrued rent and other reasonable costs incurred by the landlord by reason of the tenant’s abandonment" (see: Arizona Revised Statute, Section 33-1370).

Some states simply don’t address the issue. Others give vague directions: For example, California allows landlords to recover from the tenant, in addition to lost rent, compensation for "all the detriment" caused by the tenant’s breach (see: California Civil Code Section 1951.2).

So, whether your landlord can stick you with re-renting costs will depend on your state’s law on the subject. If there is no clear answer, you might try arguing against having to pay those costs this way: The landlord would have incurred re-renting costs had you stayed until the end of the lease term, and you certainly would not have been responsible for them at that time.

Why should you pay now, simply because the costs are hitting several months earlier? To say that it’s part of your punishment for breaking the lease without justification won’t fly. People who back out of contracts are expected to pay for the actual damages they cause, not to pay penalties.

But that’s not to say that your early departure did not cause damages besides the loss of the rent. There is a fair way to measure your landlord’s damages: His early re-renting efforts meant that he spent money several months earlier than he had planned. For those months, the money he had to lay out was not in his bank account, earning interest.

That lost interest is a true measure of his damages. In addition, he’s had to devote staff and personal time to a chore that he expected would arrive later; he may be able to put a reasonable monetary figure on the value of postponing what he and the staff would otherwise have been doing.

Taken together, these are the landlord’s true damages caused by having to find a new tenant sooner.

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 janet@inman.com.

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