In addition to the basic elements that comprise your duty to keep your rental property habitable by ensuring access to things like running water, adequate ventilation, and heat, you are responsible for keeping your tenants safe from a number of environmental health hazards. Some of these issues, such as lead or asbestos exposure, likely come up more often in older properties. However, some issues, such as mold or bedbugs, can develop in any rental unit, and it is important to understand the steps you should take to prevent, disclose, and remedy these situations should they arise.
As many people know, lead paint was often used in structures before 1978, and lead pipes may have been used in much older buildings. Some pipes installed before the late 1980s may also have lead-based solder. State and local laws can vary with regard to a landlord’s responsibility as to lead exposure and disclosure to tenants, but the primary rules all landlords should be aware of come from the federal government. Under a 1992 law that is enforced by the Environmental Protection Agency (EPA), landlords must to disclose to new tenants or existing tenants signing a new lease whether there is any lead-based paint in the rental, or any other types of lead exposure that could pose a danger to tenants living there. This of particular importance if young children live in the rental unit. The landlord and tenant must sign a form acknowledging that the disclosure has taken place, and the landlord must provide the tenant with an EPA pamphlet or approved state government equivalent about the dangers of lead exposure. Failure to comply with these regulations can result in penalties of more than $15,000 per violation if you know of the danger and fail to rectify it. You may also be required to pay a tenant’s civil damages and be subject to criminal fines.
There are additional requirements if a landlord plans to renovate a property built before 1978. Renovators planning alterations that will likely disturb painted surfaces must give 60 days’ notice to tenants in affected units, or to all tenants if the work will be done in a common area. The landlord must also give the above-referenced EPA pamphlet to tenants in any occupied units that will be impacted. These requirements do not necessarily apply to minor or emergency repairs.
Some properties, such as those built after 1978 and those that have been certified as lead-free by an inspector, are exempt from federal lead disclosure requirements. Federal law does not require property inspections to determine the existence of any lead hazards, but state or local laws may. Regardless of which laws you are subject to, it can be advisable to proactively obtain an inspection in order to prevent tenant exposure to health hazards and limit your own liability should such hazards prove harmful.
Similar to lead, asbestos is a substance now known to be dangerous, but that was commonly used in older structures and building materials. A 1995 regulation promulgated by the Occupational Safety and Health Administration (OSHA) creates obligations for owners of rental properties built before 1981 to provide warnings, staff training, and disclosure information to custodial or repair workers who can potentially be exposed to asbestos on their property, as it is considered a “workplace” for anyone doing work or labor there. There is a presumption that asbestos is present on any property that falls under this regulation unless an inspector has found that there is no asbestos. If your rental property was built before 1981, as with lead, it can be wise to test for asbestos in order to prevent injury to workers as well as tenants, and to limit your liability. Though no law requires specific disclosure of the presence of asbestos to tenants, you could be held legally responsible for failing to provide a habitable living environment if asbestos exposure harms one of your tenants.
Mold is a common problem in all sorts of properties, and while only a handful of state and local jurisdictions have laws on the books addressing mold in rentals, it can nonetheless be a source of liability for you if a tenant can successfully argue that a mold issue constitutes a failure on your part to make their dwelling habitable. While many types of mold are not harmful or even visible, tenants have secured significant damages in cases of black or “toxic” mold allegedly causing them health problems. Thus it is generally in your best interest to manage this issue proactively.
Properties in some climates will always be prone to more mold issues than others due to humidity, though in any situation involving moisture accumulation and poor ventilation, it is possible to have a mold problem. In addition to ensuring that your property is structurally sound by preventing or promptly addressing window, roof, or plumbing leaks or other sources of moisture buildup, it can be useful to require tenants to inform you promptly of any mold issues and also to educate them on what they can do to prevent mold. Tenants should do what they can to prevent mold growth by opening windows to allow for air circulation and to offset any humid conditions, keeping their units clean, and again, alerting you immediately to any suspected mold issues.
Other Health Hazards
In addition to the major issues addressed above, many other common problems can lead to tenant health issues and landlord liability, so it is important to be aware of any state or local laws requiring treatment, prevention, or disclosure regarding them.
For example, high concentrations of carbon monoxide can be dangerous or even lethal, and can be caused by things like faulty appliances and blocked chimneys. While prevention in the form of prohibiting the use of certain appliances and devices in your rental can be useful, perhaps the most important thing you can do, and what is required by law in many states, is to ensure that a functioning carbon monoxide detector is installed in the unit.
Another problem that has been coming up for landlords in recent years with increasing frequency is bedbug infestation. While it can be difficult to pin responsibility on a particular tenant should this occur, it is much easier for tenants to hold landlords responsible for an inadequate response or failure to disclose a known problem of this nature. As soon as you learn of a possible infestation, it is key to enlist the help of a well-regarded exterminator, and follow through with all recommended steps to remove these pests, which can take weeks or months. Keep in mind that some states view bedbug mitigation as being part of the implied warranty of habitability for rental properties, and others require you to disclose past infestations to prospective tenants. Though dealing with this problem can be costly, your insurance may help offset some of these expenses, and ultimately the costs of addressing this problem head-on will be less than the damages you may have to pay should you be sued by a tenant for a failure to take appropriate steps to respond, or if tenants begin abandoning the property if it becomes uninhabitable.