Don’t Let the Bed Bugs Bite

“We are on the threshold of a bed bug pandemic,” the National Pest Management Association warned recently.

That we are talking about bed bugs at all, let alone a bed bug “pandemic,” is surprising.  Until recently, these pests were encountered only in history books and old sayings, as in “don’t let the bed bugs bite.”  But the banning of pesticides that had virtually eradicated the bugs has given them new life and international travel has given them wings.

The bugs themselves don’t have wings, but they attach themselves invisibly to the luggage and clothes of travelers, who have transported them via airplanes, buses, trains and cars to hotels, office buildings, shopping malls, schools, theaters and, of course, beds all over the world.

Bed bugs are small – less than an inch long – and resilient.  They reproduce enthusiastically, spread rapidly and can live for up to a year without food, their food of choice being the blood of the sleeping humans they bite.  Good housekeeping isn’t a factor; the bugs will infest the most pristine of dwellings, and they reside as comfortably in offices as in homes, hiding in desks, chairs and couches as well as mattresses, and hunkering down in the tiniest cracks and crevices, making them hard to find and, once embedded, harder still to dislodge.  A measure of the difficulty: Pest control companies in Ohio and Kentucky have asked for a waiver to use chemicals the Environmental Protection Agency has banned, to deal with infestations they haven’t been able to cure otherwise.

Cover Story

There is no question bed bugs are getting more attention.  They haven’t appeared on Oprah yet, but they did make the cover of a recent issue of the New Yorker magazine, under the headline, “Bed Bugs and Beyond.”  The New York Times reports that the number of Google searches for bed bugs increased by 83 percent in the past year, and there is even a web site (Bedbugger.com) devoted to the topic.  A housing agency in Toronto recently sponsored an all-day seminar on bed bugs and what to do about them, while in New York, a newly enacted ordinance requires landlords to disclose prior bed bug infestations to rental applicants and existing tenants.  I have been lecturing on bed bugs at conferences around the country and these sessions are always filled.  I have no illusion about the reason: It’s the topic (bed bugs), not the speaker that is the draw.

Pest management companies reported revenues of $258 million for bed bug extermination last year, compared to $98 million in 2006.  That probably counts as good news for pest control companies, but not so much for the residents whose homes become infested or for the landlords, property managers and association boards that have to deal with their complaints.

Although bed bugs aren’t known to carry communicable diseases, their bites trigger an allergic reaction in many people – resulting in itchy, painful welts. And the bugs are gross. Just the thought of them makes people twitchy and angry – and inclined to sue the landlords, or community associations, or hotels in which the bugs appear.

One couple sued a Catskill hotel for $20 million after the wife was hospitalized for treatment of an allergic reaction she suffered from 500 bug bites she received. A singer, similarly, sued a Hilton hotel for $6 million, claiming permanent psychological damage from the more than 150 bed bug bites inflicted on her during a stay at the facility. The hotel’s offer to waive the fee for one night was not adequate, the singer said.

In one of the few cases that has produced an appellate decision, the Seventh Circuit upheld a jury award of $5,000 for compensatory damages and $186,000 in punitive damages for a bed-bug-bitten Motel 6 guest, who charged that the hotel ignored complaints about the bugs, failed to address the problem and continued renting rooms to unsuspecting guests. The Appellate Court agreed that the hotel’s failure to take corrective action and failure to warn guests about the problem “amounted to fraud and probably to battery as well.”

Landlord’s Obligation

Most of the reported bed bug cases to date have involved hotels. The relatively few cases involving rental properties have produced mixed decisions about the liability of the landlords, depending on their knowledge of the problem and the steps they took to deal with it. In one particularly egregious case, a tenant complained endlessly about bed bugs, to no avail. His unit became so infested that the tenant first slept on the balcony, then got an air mattress, then covered everything in plastic and finally tried sleeping on a metal cot in his bathtub. The court found the landlord’s refusal to respond unacceptable and his liability significant.

The state Sanitary Code in Massachusetts (and in many other states) requires landlords to keep dwellings free of insects and other pests, so there is little question about their obligation to respond to an infestation, once they become aware of it. But bed bug infestations are complicated for two reasons:

• Unlike most other pests – spray once and they’re gone – bed bugs often require multiple treatments; and
• Successful treatment requires the cooperation of tenants, who must bag virtually everything in their units, eliminate clutter, and wash and/or dry all their clothes. Without those steps, some bugs will survive and reproduce, continue to infest the targeted apartment and, inevitably, spread to others. For this reason, landlords can’t (and shouldn’t) simply throw up their hands if a tenant refuses to cooperate; they should seek a court order, if necessary, to compel cooperation in order to prevent a building-wide infestation that would be more complicated and more difficult to cure.

Bed bug infestations in rental properties raise another tricky question —the landlord’s potential liability (if any) for damage to personal property. This question arises because exterminators sometimes recommend disposing of furniture or clothing that can’t be effectively purged of bugs; and because, even when exterminators don’t recommend disposal, tenants sometimes “freak out” over bed bugs, jettison everything in sight, and then insist that the landlord compensate them for the loss.

Although we haven’t seen any court decisions on this question yet, we don’t think landlords have any liability for personal property lost or damaged in connection with a bed bug infestation, regardless of whether the exterminator recommends the disposal of the property or not. An infestation might constitute a breach of the warranty of habitability, justifying a temporary reduction in the tenant’s rent as long as the problem persists. But landlords would be responsible for property damage only if their negligence caused the infestation, which is unlikely to be the case. Nothing landlords do or fail to do will bring bed bugs into an apartment. More often than not, it is tenants who cause an outbreak, bringing in bed bugs attached to their luggage after a trip or in used furniture or used clothing that they purchase – one of the major sources of infestations.

At least thus far, no courts have found that the mere presence of bed bugs creates a claim for monetary damages for the loss of personal property. Our advice to landlords: As long as they respond prudently to bedbug complaints, we don’t think they will have any serious liability risks in this area.

The question thus becomes, what does it mean to respond prudently? The answer, unfortunately, is neither clear nor simple. Some experts believe the only proper response is a chemical treatment. Others insist that heating machines and other non-invasive, non-chemical technologies are the best treatments. My suggestion, which appears to be accepted by courts, is to follow the recommendations of your professional exterminator. If the exterminator says treating the infested unit alone with a single application is sufficient, fine. If he/she advises treating all the adjacent units with multiple applications, do it. Just make sure your exterminator has experience —and a successful track record— eradicating these pests.

It appears that following the recommendations of a licensed “professional” will demonstrate to a court that you were acting prudently and reasonably, thereby avoiding a negligence claim. In fact, in the cases in which courts have assessed actual and punitive damages against landlords and property owners have usually resulted from findings that they failed to comply with the directions of the exterminator.

A Common Area Problem

Although the ownership structure of condominiums is different, the concerns are similar to those of rental property owners and so is our advice to community associations. Condominium owners, who are responsible for maintaining their own residences, also arguably should be responsible for dealing with bed bugs individually as well. But because the pests spread so quickly, and because building-wide infestations are so difficult to control, unless an infestation clearly originated in a particular unit and is wholly contained there, we recommend that associations deal with bedbug extermination as a common area expense.

At least one association we know of is insisting that one owner pay the cost of exterminating the entire complex, claiming that this owner was responsible for introducing the bugs. We think this assertion will be difficult, if not impossible, to prove. While this owner’s unit may be less well kept than others, and the owner himself may be “unclean” (as the board alleges), bed bugs aren’t related to housekeeping skills or personal hygiene, or income. Just because one owner is first to notice or report bed bugs in his/her unit doesn’t prove conclusively that the problem originated there.

For landlords and community associations dealing with bedbug complaints (and if you haven’t yet, the odds are you will at some point in the future), we recommend the following:

1. Respond quickly and prudently to tenant/owner complaints and keep a detailed written record of the complaints and your responses.
2. Bring in a professional, licensed exterminator who has experience eradicating bed bugs, and follow the expert’s recommendations. Court cases to date suggest that obtaining and following an expert’s advice can provide something of a safe harbor from liability claims.
3. Obtain a court order, if necessary, to secure the cooperation of individual tenants and owners in treating their units. As noted earlier, a tenant’s refusal to cooperate with the bed bug treatment will not eliminate a landlord’s obligation to deal with the problem. The same logic applies to community associations; if one owner fails to exterminate or doesn’t exterminate successfully, treating all the other units and the common areas will be futile.
4. Consider adding a lease addendum or amending your condominium documents to proactively confirm the obligations of tenants and owners to report bed bugs and remediate infestations. Lease provisions could require, for example, pre-move in inspections of the tenant’s personal property, prohibit tenants from bringing furniture in from the street, and specify their obligation to permit access for inspections and treatments, etc.
5. Educate apartment tenants and condominium owners about the bed bug problem and the precautions they should take —inspecting luggage and clothes after trips, the risks of buying second-hand clothing and furniture —and the need to report any sign of bed bugs immediately. The best strategy by far for dealing with bed bugs is to avoid infestations in the first place.