Chapter 11 Landlord's Liability for Environmental Health Hazards

• Library: Every Landlord's Legal Guide (Nolo) (2020 Ed.)

CHAPTER 11 Landlord's Liability for Environmental Health Hazards

Asbestos

OSHA Regulations for Landlords

How to Limit Your Liability for Asbestos

Lead

Is Your Property Exempt From Federal Lead Regulations?

Must You Have an Inspection?

Disclose Lead Paint Hazards to Tenants

Give Tenants the EPA Booklet on Lead

Enforcement and Penalties

Give Tenants Information When You Renovate

State and Local Laws on Lead

Why You Should Test for Lead

Call In Expert Help to Clean Up Lead-Based Paint

Radon

Carbon Monoxide

Sources of Carbon Monoxide

Preventing Carbon Monoxide Problems

Carbon Monoxide Detectors

Responsibility for Carbon Monoxide Buildup

Mold

Laws on Mold

Your Liability for Tenant Exposure to Mold

Preventing Mold Problems

Testing for Mold Toxicity

How to Clean Up Mold

Insurance Coverage of Mold Problems

Bedbugs

What's a Bedbug—And Where Does It Come From?

How to Deal With an Infestation

Proper Cleaning and Housekeeping: Can You Insist on It?

Who Pays for All This?

Will Your Insurance Step Up?

Disclosure to Future Tenants

Electromagnetic Fields

FORMS IN THIS CHAPTER

Chapter 11 includes samples of the following:

• Protect Your Family From Lead in Your Home Pamphlet
• Disclosure of Information on Lead-Based Paint and/or Lead-Based Paint Hazards form

The Nolo website includes downloadable copies of these forms (in both English and Spanish). See Appendix B for the link to the forms in this book.

In 1863, an English judge could write that "Fraud apart, there is no law against letting [leasing] a tumble-down house." But in 21st century America, it's no longer legal to be a slumlord. Landlords must take reasonable steps to protect tenants and guests. As discussed in Chapter 9, this duty requires you to maintain the structural integrity of the rental property. If you don't make needed repairs and, as a result of defective conditions, a tenant is injured, you might be found liable.

In this chapter, we focus on an additional responsibility that has been imposed on landlords: the duty to divulge and remedy environmental health hazards, including some caused by forces beyond your control. Put bluntly, landlords are increasingly likely to be held liable for tenant health problems resulting from exposure to environmental hazards in the rental premises. This liability is based on many of the same legal theories discussed in Chapter 10, such as negligence and negligence per se (negligence that is automatic when a statute is broken).

Read on for an overview of the legal and practical issues involving landlord liability for environmental health hazards, specifically asbestos, lead, radon, carbon monoxide, mold, and bedbugs.

RELATED TOPIC

Related topics covered in this book include:

• How to make legally required disclosures of environmental hazards to tenants: Chapter 2
• Maintaining habitable property by complying with housing laws and avoiding safety problems: Chapter 9
• Your liability for tenant's injuries from defective housing conditions: Chapter 10.

Asbestos

Exposure to asbestos has long and definitively been linked to an increased risk of cancer, particularly for workers in the asbestos manufacturing industry or in construction jobs. More recently, the danger of asbestos in homes has also been acknowledged.

Houses built before the mid-1970s often contain asbestos insulation around heating systems, in ceilings, and in other areas. Until 1981, asbestos was also widely used in many other building materials, such as vinyl flooring and tiles. Asbestos that begins to break down and enter the air—for example, when it is disturbed during maintenance or renovation work—can become a significant health problem. Asbestos fibers enter the lungs and lodge there, causing disease.

Until the mid-1990s, however, private owners of residential rental property had no legal obligation to test for the presence of asbestos. Landlords whose tenants developed an asbestos-related disease could successfully defend themselves if they could convince the judge or jury that they did not know of the presence of asbestos on the rental property.

Landlords' protection from liability for asbestos exposure all but evaporated in 1995, when the U.S. Occupational Safety and Health Administration (OSHA) issued a 200-page regulation setting strict workplace standards for the testing, maintenance, and disclosure of asbestos. Because your building will be a "workplace" for anyone working there on renovations or repairs, your building will be subject to OSHA's strict guidelines if it contains (or might contain) asbestos. The upshot: Complying with OSHA regulations will eventually force you to test, which will tell you whether your property contains dangerous asbestos.

OSHA Regulations for Landlords

OSHA regulations require rental property owners to install warning labels, train staff, and notify people who work in areas that might contain asbestos. In certain situations, owners must actually test for asbestos.

These regulations apply to large landlords who employ maintenance staff (or managers who do maintenance work) and small-scale landlords who have no employees, but who do hire outside contractors for repair and maintenance jobs. OSHA regulations apply to any building constructed before 1981, even if you don't plan to remodel or otherwise disturb the structure. Unless you rule out the presence of asbestos by having a licensed inspector test the property, it is presumed that asbestos is present, and the regulations apply.

OSHA protections vary according to how much asbestos you're disturbing. For example, workers who are involved in removing asbestos receive maximum protection; those who merely perform superficial custodial tasks need less:

• Custodial work. Employees and contractors whose work involves direct contact with asbestos or materials that are presumed to include it—for example, certain types of floors and ceilings—or who clean in areas near asbestos are subject to OSHA regulations for "general industry." The cleaning service that washes asbestos tiles in the lobby of a pre-1981 building, or the handyman who installs smoke alarms that are embedded in acoustic-tile ceilings made with asbestos, would both fall within the custodial work category. Custodial workers must receive two hours of instruction (including appropriate cleaning techniques) and use special work procedures under the supervision of a trained superior. The general industry standard does not require testing for asbestos. Of course, if you know that high levels of asbestos are present, even custodial tasks must be performed with appropriate levels of protection, such as special masks and clothing.
• Renovation or repairs. Stricter procedures are triggered by removal, repair, or renovation of asbestos or asbestos-containing materials—for example, in heating systems or ceilings. At this level of activity, you must test for the presence of asbestos and assess exposure by monitoring the air. Workers must get 16 hours of training per year, oversight by a specially trained person, and respiratory protection in some situations. In addition, employers must conduct medical surveillance of certain employees and maintain specified records for many years. So, for example, your decision to replace that ugly, stained acoustic-tile ceiling would require, first, that the material be tested for asbestos, followed by worker training and protection measures appropriate for the level of exposure. If you hire a contractor to do the job, the contractor will take care of these requirements, and you'll see the work reflected in the contractor's invoice.

CAUTION

There is no escaping OSHA's asbestos regulations under the theory that what you don't know about can't cause legal problems. You might think that you can

escape OSHA's asbestos regulations by personally doing minor repair and maintenance and hiring independent contractors to do the major jobs. This might work for a while, until you hire a law-abiding contractor who acknowledges the independent duty to protect employees and performs asbestos testing. The results of the tests will, of course, become known to you, because you'll see the report and pay the bill.

Key Aspects of OSHA Asbestos Regulations
Which buildings are affected. The regulations apply to pre-1981 structures and newer structures found to contain asbestos.
Where asbestos is likely to be found. The regulations cover two classes of materials: those that definitely contain asbestos (such as certain kinds of flooring and ceilings) and those that the law presumes to contain asbestos. The second class is extremely broad, encompassing, among other things, any surfacing material that is "sprayed, troweled on, or otherwise applied." This means virtually every dwelling built before 1981 must be assumed to contain asbestos.
What work is covered. The regulations apply to custodial work and to renovation and repair work.

How to Limit Your Liability for Asbestos

If asbestos is present on your property and you knew about it, and can be shown to be the cause of a tenant's illness, you could be found liable. Some states consider the presence of airborne asbestos to be a breach of the implied warranty of habitability, which (depending on the specifics of a state's law) would give the tenant the right to break the lease and move out without notice, pay less rent, withhold the entire rent, or sue to force you to bring the dwelling up to a habitable level. A more serious consequence is a personal injury lawsuit directed at you, as the person responsible for the tenant's exposure and resulting injury.

Limiting your liability for asbestos-related injuries (to tenants and workers alike) begins with understanding a fundamental point: Unless you perform detailed testing to rule out the presence of asbestos, every pre-1981 structure must be treated as if it does contain asbestos. Take these steps:

• Get a copy of the OSHA regulations or the guidelines that are based on them. (See

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