What You Need To Know About Bedbugs But Were Afraid To Ask

By the late 1960s, bedbugs had virtually disappeared.  The bedbug’s demise was due to the wide use of the pesticide DDT.  The EPA banned DDT in 1972.  The bedbug has resurged because of the DDT ban combined with an increasing traveling and mobile world population.  Regardless of the cause, bedbugs are back with a vengeance.  Unfortunately, this has meant that bedbugs have become more prevalent in the rental industry.  A growing number of attorneys now specialize in bringing bedbug related litigation against the rental industry.  We have represented clients in numerous cases and matters.  This month we share some of our experiences in litigating bedbug related issues.

Resident bedbug litigation is based on a number of legal theories.  These theories include breach of contract, breach of covenant of quiet enjoyment, violation of the Colorado premises liability statute, violation of the Colorado Warranty of Habitability statute, fraud by concealment, and violation of the Colorado Consumer Protection Act.  Depending on the legal theory, residents may claim a wide variety of damages.  Specifically, residents may attempt to recover damages for rent abatement, medical costs (for bites and other physical damages), moving expenses, the difference in rent between your lease and the rent at their new place if higher, pain and suffering, punitive damages, and attorneys’ fees and costs.

Residents have asked for damages varying from several thousand dollars to damages in excess of fifteen thousand dollars.  Fortunately, to date, no resident has won a substantial verdict in the cases when we have been involved.  Nationally, there is not a single published or reported case of a substantial bedbug verdict against multi-family housing providers.  We think it’s only a matter of time.  Regardless, resident verdicts and settlements are only part of the financial story.  If you fail or lack the ability to quickly and effectively deal with bedbugs, countless other costs and damages may result.  Code enforcement officials may impose significant fines.  The disgruntled resident may incite other residents by starting a petition resulting in a substantial number of residents vacating or attempting to vacate.  The community also faces the risk of losing significant revenue from adverse publicity.

To prevent a nightmare scenario, you need the ability to deal with bedbug issues quickly and effectively.  As with most resident issues, the solution begins with a strong lease and consistent policies.  Few leases adequately address bedbugs.  Your lease should methodically set forth key requirements.  Residents should report bedbugs immediately.  You can’t successfully eliminate bedbugs without continued resident cooperation and effort.  A lease should define the resident’s agreement to cooperate.  Cooperation means allowing you timely access to the resident’s unit to inspect, plan, and eradicate.  But when it comes to bedbugs, resident cooperation takes on a whole new meaning.  The simple fact of the matter is that you cannot timely and permanently eliminate bedbugs without significant resident ongoing cooperation and effort.

Experts agree that residents should perform the following functions to maximize the probability of achieving successful eradication.  Strip all sheets and linen from all beds. Move all beds away from walls. Vacuum to initially collect (fatally) as many bedbugs as possible.  Vacuuming efforts should especially focus in and around bedrooms, underneath beds, around headboards, in mattress crevices, and along mattress frames and tracks.  All furniture should also be carefully vacuumed as well.  Promptly dispose all vacuum bags in the dumpster.  Clean in all cabinets, drawers and closets.  Remove all clutter that would prevent effective service.  Plastic bag all potentially infected clothing.  Remove all occupants from the unit for 3 hours after service, including all pets.  After the pest service launder all bed sheets and linen, as well as any other clothing items that may be infected.  Clothes should be laundered with hot (at least 140 degrees) water.  Ideally, bedding should be laundered at least several times every couple of days after treatment.  Vacuum again after service. Then vacuum your apartment daily thereafter for at least 3 days.

As a much shorter alternative, your lease can succinctly state that “the resident agrees to undertake all efforts and tasks recommended by a qualified expert”.  As stated, any expert worth his salt will make the foregoing recommendations and even a few more.  I know.  You probably haven’t stopped laughing yet.  You think we’re crazy.  Your thinking if a resident did all of these things; this would be the greatest level of resident cooperation in the history of the multifamily industry.  I’m thinking, you may be right.  You probably are never going to get a resident to cooperate to this extent, even though they are the one getting bit night after night by blood sucking insects.  However, you have to have the right to force the issue.  You simply cannot solve this problem without the resident’s help and sustained effort.  If the resident doesn’t wash his clothes, the bugs are right back in business.

This brings us a to critical point.  Your lease must make the resident’s failure to cooperate grounds for eviction.  You should consider making the resident’s violation of bedbug covenants a non-curable breach giving you the right to terminate upon three days notice to quit.  Because failure to timely eliminate bedbugs can turn an A community into a D- wasteland in short order, you can’t afford to mess around or take chances.  If the resident won’t get on board, the resident must go.  Otherwise, the community faces the risk of the problem spiraling out of hand.  It’s better to take on one fight, than to be dealing with one, two, four, eight, or sixteen other angry and hostile residents.
Residents should also be required to immediately notify you of any signs of re-infestation or indications that treatment has been ineffective.  Residents should be liable for all resulting costs and damages if they fail to cooperate.  This would include costs for extermination, and arguably for the spreading of the infestation.  However, this damage would be very difficult to prove, and impossible to collect.  Like many other big stick lease provisions, the mere possibility may be enough to get some residents to cooperate.  Bedbug related provisions can and should be extended to all pest control issues.  In other words, lease language doesn’t have to be bedbug specific but can be generic enough to cover all other pests, including public enemy number one, the cockroach.

The outcome of many, if not all, bedbug cases turns on the timeline.  Establishing when the resident first reported bedbugs is critical.  Best practices mandates that this be established in writing.  Upon learning of the problem, promptly generate a letter to the resident documenting the date of the report, some information about bedbugs, and outline your game plan and the resident’s responsibilities.  A sample letter can be downloaded from our website.  The web also has great general bedbug information, for example, see http://www.hsph.harvard.edu/bedbugs/.   The defense in one case was complicated because there was no documentation of when the resident first complained of a problem.  The manager at the time was long gone.  Also, document in writing that the unit was pest free at move-in.  Add a provision to your move-in move-out check list that the resident acknowledges that the unit is pest free.  If you can’t establish that the unit was pest free on move-in or when the resident first reported a problem, you open yourself to the charge that the resident complained for months and you did nothing.  The outcome of bedbug cases frequently turns on whether the court views your actions as reasonable and diligent under the circumstances.

There are several other key facts, which should be documented in writing.  Any failure on the part of the resident to cooperate.  This includes failure to grant access, failure to prepare, failure to take necessary post service actions, and failure to timely report unsuccessful treatment (a re-infestation).  You also need to establish dates of service (that your efforts were sustained if necessary), and any reasons for delays in service.  Exterminator qualifications are important for many reasons. Not all exterminators are qualified to eradicate bedbugs.  Make sure that you have a qualified bedbug exterminator lined up in advance.  You don’t want to have to change horses in midstream.  You want the same contractor on the problem from start to finish.  You then have a built in expert witness who can testify that you did everything reasonable under the circumstances, but the problem didn’t go away because the resident wouldn’t cooperate.  If efforts do fail, make sure to ask the expert to provide his opinions in writing.  Like onsite maintenance personnel, exterminators deal with thousands of jobs.  The document can later be used to refresh his memory of this particular job.

Judges don’t care where the bedbugs came from.  This fact is almost impossible to establish anyway.  The court will be the most interested in the overall timeline, and your response. Because judges care that sufficient notice was given to resident to prepare for the service call, this fact should also be documented in writing.  If the resident claims he can’t adequately prepare, always respond in writing.  Ask the resident to state his reasons for not being able to adequately cooperate.  Unless, your lease requires otherwise, or the resident is disabled and is making a request for a reasonable accommodation, under most circumstances the community does not have to assist the resident in preparing or with necessary post service tasks.

Finally, we get asked one bedbug related question more often than most.  Specifically, if you have had a bedbug problem in the past, do you have to disclose this to prospective residents?  The answer is easy if a prospect specifically asks about bedbugs.  The answer is YES.  If the prospect doesn’t specifically ask, Colorado law does not provide the crystal clear answer that the industry needs.  The best answer is maybe, but probably not under most circumstances.

Fraud by concealment claims are based upon an alleged failure to disclose bedbugs.  The resident alleges that you knew at the time you leased the resident the unit that the community had bedbugs, and you failed to disclose this fact.  If you would have disclosed this fact, the resident would have never leased the apartment.  Thus, but for the fact that you failed to disclose this critical piece of information, the resident would not have suffered any damages.

Under Colorado law, you have a duty to disclose to a prospective resident any fact that “in equity or good conscience” should be disclosed.  The judge gets to make the call whether or not you should have disclosed because the duty to disclose particular facts is a question of law.  The problem is that the law does not define what “in equity or good conscience” means.  The real problem is that nobody would rent any apartments if bedbug issues were disclosed.  How about this for a closer, “Jim, I know that you are going to just love all the amenities here, but by the way, I just wanted to let you know that we had a little bedbug problem last month”.

Though the law gives no clear answer, concealment law does provide some guidance.  Clearly, you have to disclose known latent defects whether the prospect asks about them or not.  A latent defect is an imperfection or shortcoming not discoverable by reasonable inspection.  Under this standard, you only have to disclose bedbug problems if you are renting an apartment that you know has bedbugs.  Unless of course, the prospect can see them crawling around for himself. 

If you an isolated incident and have taken all reasonable and expert recommended steps to get rid of the bedbugs and there have been no further reports of bedbugs, your position is that the bedbugs are gone.  There is no imperfection or latent defect. There is only a bedbug free apartment.  There is nothing to disclose.  However, if you have had a wide spread ongoing problem for a significant length of time with regularly scheduled exterminations both in the past and in the future, most courts would likely hold that this does amount to a latent defect requiring disclosure.

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