Bedbug problem bites at tenant

Q: One unit in our fourplex has a bedbug problem. The landlord hired an exterminator, who found a bug in two other units, so he recommends treating the entire building. We're going to have to take time off from work to prepare our apartment, then spend a night in a motel. We didn't cause this problem. Shouldn't the landlord reimburse us for the time off work, in addition to our lodging costs? --Natalie B.

A: Whether you can fairly (and legally) expect the landlord to cover your expenses depends on whether your state has addressed this situation. Unfortunately, very few have, though that is changing as the bedbugs are once again starting to bite.

Maine has brand-new legislation that sensibly tackles this problem (Maine Rev. Stat. Ann. Section 6021-A). The legislation was crafted by a bipartisan group of interested landlords and tenants, and embraced by the governor.

Under the law, landlords may not rent infested units; if a unit or adjacent unit is being treated for an infestation, the landlord must disclose this to prospective tenants; and if a tenant or prospective tenant asks, the landlord must disclose the last date the unit was inspected and found to be free of any infestation.

Once a landlord is notified of the presence of bedbugs, the time periods for inspection and treatment are very short.

Maine has also addressed the issue of "who pays?" when tenants must leave, though the law is not abundantly clear. First, tenants must comply with all remediation measures; if they don't, they can be held financially responsible for the cost of eradication.

If the tenant can't comply with the inspections or control measures, the landlord must offer "reasonable assistance," including financial assistance. The landlord may charge the tenant a "reasonable amount for any such assistance, subject to a reasonable repayment schedule, not to exceed six months."

This could mean that if the landlord fronts the cost of a night's stay in a motel, the tenant will be expected to pay the landlord back over the next six months.

It's not so clear whether the value of lost time at work (time you'll be spending sorting through your stuff, for example, or making it available for inspection and treatment) is also contemplated by this legislation.

Long story short: If you live in Maine, it's likely that you will have to cover the cost of your night away, but you might get a sort of short-term loan from the landlord to cover the expense.

Tenants living in states that haven't passed laws like Maine's will have to depend on tried-and-true (but often difficult to apply) habitability laws. All states but Arkansas require the landlord to offer and maintain fit and habitable premises, which includes the responsibility to pay for repairs or upkeep when problems arise that are not the fault of the tenant.

The challenge with bedbug infestations is that it's often very hard to figure out who is responsible for their presence.

Consider a broken heater that breaks through no fault of the tenant, or the arrival of ants when heavy rains disturb their outside nests: Tackling these problems must be paid for by the landlord, because the tenant didn't do (or fail to do) anything to prevent them.

But bedbugs don't just appear. Someone brings them in, and landlords understandably seek to identify the culprit and stick him or her with the bill.

Trouble is, it's very hard to trace the infestation to a particular tenant. For this reason, landlords usually end up paying for the eradication efforts. But it's a much more significant burden to make landlords also pay even innocent tenants' costs to relocate.

Perhaps that's why Maine stopped short of such a requirement. It would be surprising to find a judge willing to impose this cost on a landlord short of some proof that the landlord put off dealing with the bugs, which made the problem worse, resulting in drastic or repeated treatments (and nights away for his tenants).

Q: I work for a management company and have been here six months -- I'm still in training. Part of my job is to accept rental applications and do a preliminary review. I looked at one the other day, given to me by a woman who came with four kids. She wanted to rent a small two-bedroom unit; it seemed too small to me.

I wrote a note on the application for my boss, asking if I should direct her to a larger unit. He got real upset, and told me that this could trigger a fair housing lawsuit. I never meant any harm; I just didn't know whether the unit was big enough. Did I do anything wrong? --Henry C.

A: Credit your boss with being super sensitive to the problem of discrimination against families, which often happens when landlords set occupancy standards that effectively eliminate families from consideration.

In response to these practices, the federal government (HUD) has offered guidelines for landlords to follow when setting occupancy policies. That standard is "two per bedroom," but it is not absolute (for example, if a bedroom is unusually large, it might accommodate more).

In addition, landlords may set more restrictive standards if the nature of the property or its systems cannot safely or reasonably handle the number of residents that would result from a "two-per-bedroom" rule.

They may also have to adjust upwards -- for instance, the presence of an infant in the parents' bedroom results in three residents, but no one can seriously claim that the infant overcrowds the room.

Many states have followed the federal rule, and a few have set more generous standards. In California, for example, the rule of thumb is "two per bedroom plus one." But in California, as with the federal rule, the reality of the setup can affect the calculation.

Let's imagine that you, like most, are subject to the two-per-bedroom guideline. Technically, this family of five is over the limit, but as explained, each situation needs to be evaluated in light of the precise setup. If the rental is in California, the family would qualify.

So much for theory. Now, to the heart of your question: Did you do anything wrong? I don't think you did, nor did you expose your boss to a likely charge of housing discrimination. Here's why.

The fair housing laws are designed to prevent landlords from treating specific classes of persons differently (worse) than everyone else, whether by refusing to rent to them, setting more onerous terms and conditions of renting, or making statements that have the effect of discouraging them from living on the property.

You did none of this. Instead, you asked your boss whether the unit you showed the applicant was too small, and whether you should suggest a bigger one.

Critically, you didn't make that observation to the applicant herself, nor did you steer her to the bigger apartment. If you had, and if the original two-bedroom unit would have been appropriate under the occupancy standard of your state, the answer might be different.

That's because your applicant could have concluded that you were trying to discourage her from living there, by telling her that a larger (and presumably more expensive) unit was the only one you'd offer.

Think for a moment about the consequences if the answer were different. No one in your position -- someone learning the business, needing to ask questions of those in the know -- would dare ask a question, for fear of exposing the boss to legal trouble. When people don't ask questions, they don't learn.

Without this opportunity to learn about occupancy standards and steering, you would go your merry way, possibly making risky (though well-meaning) remarks to applicants themselves, thereby discouraging families from renting and possibly violating the law.

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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