Thursday, November 19, 2009

Bed Bugs

At the request of the Apartment Association of North Alabama, I gave a presentation today on bedbugs in conjunction with Cook's Pest Control. Although we have been remarkably insulated from the wide-spread infestation and resulting litigation that has plagued other geographic regions, I have seen an increase in reported cases amongst my clients and expect this to continue. I have included excerpts from my handout in this blog entry for those of you who were unable to attend.

The bedbug is an insect that lives by hematophagy - feeding on the blood of humans or other warm-blooded hosts. Its name comes from its preferred habitat - mattresses, sofas, and other furniture. Although it is not strictly nocturnal, bedbugs are mainly active at night and, contrary to a popular misconception, bedbugs are visible to the naked eye. Adults can grow to 4mm in length (often compared to apple seeds or lentils) and bedbugs do not move quickly enough to escape the notice of an attentive observer.


Dwellings become infested in a variety of ways - for example, people can acquire bedbugs at hotels and bring them back to their homes in their luggage, or inadvertently bring them home in infested furniture. As most landlords and property managers in the multi-family housing industry realize, bedbugs can travel between units in multi-unit dwellings after being originally brought into the building by one of the above routes. Furthermore, because there are documented reports that bedbugs are able to lie dormant for up to five hundred days, it can be very difficult to trace the source of the infestation to a single responsible party.


There are two potential avenues of liability facing a landlord with a bedbug infestation: statutory and contractual claims, and tort claims. For breach of contract and statutory violation claims, the elements are similar: a recognized obligation and the failure to complete that obligation. As landlords and property owners, you are familiar with tenants breaching their lease agreements by failing to pay rent or complying with statutory duties (such as Ala. Code 35-9A-303’s requirements for landlord-access).


The methods of analysis for claims against a landlord are fundamentally the same. For bedbugs, like all pests, there are three key statutes to consider:

  1. Ala.Code 35-9A-204(a)(2): the landlord shall “make all repairs and do whatever is necessary to put and keep the premises in a habitable condition”;
  2. Ala.Code 35-9A-142: requires that every duty must be performed in “good faith”; and
  3. Ala. Code 35-9A-407: if a landlord negligently or willfully diminishes services to the tenant the tenant may recover possession or terminate the rental agreement and, in either case, recover an amount equal to not more than three months' periodic rent or the actual damages sustained by the tenant, whichever is greater, and reasonable attorney's fees.


The presence of bedbugs has been held, by courts in other jurisdictions, to render the premises uninhabitable and therefore could constitute a violation of Ala. Code 204(a)(2), the penalties for which is actual damages. It is arguable that Ala. Code 407 could also be applied to a situation in which a landlord fails to act when confronted with evidence of a bedbug infestation.


In addition to claims of breach of contract and of statutory duty, there exists an additional, oftentimes more attractive, path to damages - the tort claim. Torts like “negligence”, “fraud”, and “intentional infliction of emotional distress” have been reduced to buzz words in modern parlance, but they have specific elements that must be proven in order to be successful.


Negligence, is the “bread and butter” of tort claims and requires a plaintiff to prove: 1) a duty of care owed by defendant to plaintiff; 2) a breach of that duty; 3) causation (i.e., that the acts or omissions by the defendant were the cause of the plaintiff’s injury); and 4) damages. For example, a tenant wanting to demonstrate that her landlord was “negligent” in allowing her personal property to be infested by bedbugs would have to demonstrate that: 1) the landlord/defendant owed the tenant/plaintiff a duty of care to provide a habitable premise; 2) the landlord/defendant failed to make reasonable efforts to provide the tenant/plaintiff a habitable premise by refusing to pay for remediation efforts; 3) that landlord/defendant’s failure to pay for remediation efforts resulted in the destruction of tenant/plaintiff’s property; and 4) that the property had value.


Misrepresentation and fraud are two aspects of the same offense: presenting circumstances in an untrue light to induce a party to agree to a transaction. Negligent misrepresentation relies upon providing that the alleged tortfeasor withheld or neglected to pass along information (such as the presence of bedbugs) to the customer that would have allowed the customer to make an informed decision (and, presumably, not enter into the lease for that apartment in the first place). Fraud by concealment is a tort claim where the party offering the contract not only failed to disclose certain information but also actively concealed it - potentially to the extent of outright lying about the issue. These “intentional torts” open up the possibility of punitive damages that go beyond making the plaintiff whole (the job of “compensatory damages”) and instead focus on punishing the defendant for his or her conduct.


In considering the question of tort claims from the perspective of a landlord, an infestation in a single apartment is probably only an issue for negligence-related claims and an allegation of breach of contract. When a landlord refuses to take action to remedy the problem or willfully ignores it, or allows a problem to become endemic throughout a community, the measure of damages grows.


In closing, I would remind you that dealing effectively with bedbug cases is essentially a customer service issue. Tenants who believe that their landlord or property manager has been responsive to their concerns and helped to the best of their ability is far less likely to seek redress through the courts than tenants who believe their landlord has failed to take their concerns seriously or who has outright lied about the source of the infestation.


Bedbug remediation is going to be expensive and is going to require treatment of more than just the infested unit. Most of this treatment will not be covered by conventional insurance policies. When confronted with an infestation, contact your pest elimination vendor immediately and then instruct the resident on what he/she needs to do to prepare for treatment. Aggressively monitor the problem and compel compliance by your residents if necessary, with fourteen day notices of rental agreement noncompliance. Failing to act aggressively and consistently can result in an infestation becoming an epidemic and one tenant’s complaint becoming a multi-plaintiff lawsuit. Avoid belittling the tenant or directly accusing the tenant of being the source of the infestation, and be sure to “paper the record” with every conversation relating to the infestation. Seek legal advice immediately and remember that there is no stigma attached to a bedbug infestation - bedbugs are the “ultimate communists” - they do not respect any form of status and can infest any dwelling, from the ritziest of multifamily communities to the sleaziest of flophouses.


1 comment:

  1. Thank you so much for this information! I am a tenant and just moved in 2 days ago and noticed bed bugs. I have already paid my short term 8 week rent and am hoping my landlord will let me out of the lease. Thanks for your info, I have called the CDC, Dept of Public Health, and several pest controllers and NONE, not one of them could give me this kind of information.

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