Getting Repairs (And Bed Bug Extermination) for Tenants

GETTING REPAIRS (AND BED BUG EXTERMINATION) FOR TENANTS

Martin Wegbreit, Esq.PaPat Levy-Lavelle, Esq. Lisa Allen

Central Virginia Legal Aid SocietyLegal Aid Justice Center University of Richmond

101 West Broad Street, Suite #101123 East Broad Street

Richmond, VA. 23220Richmond, VA. 23219

804-200-6045 (V) 804-643-1086, ext 308

804-649-8794 (F)804-643-1086, ext 308 & 804-643-2059 (F)

[PL1]

Lisa Allen, L ‘18

University of Richmond

[LA2]

Annual Statewide Legal Aid Conference – October18-20, 2017

I.BEDBUGS 101

WHAT ARE THEY?

[PL3]

Life Sized

[LA4]

“Bed bugs are small, brownish, flattened insects that feed solely on the blood of animals. Although the common bed bug (Cimex lectularius)prefers feeding on humans, it will also bite other warm-blooded animals, including dogs, cats, birds and rodents.

Adult bed bugs are about 3/16” long and reddish-brown, with oval-shaped, flattened bodies. They are sometimes mistaken for ticks, cockroaches, carpet beetles or other household insects. The immature bed bugs (nymphs) resemble the adults, but are smaller and lighter in color. Bed bugs do not fly, and they don’t jump like fleas do –― but they can crawl rapidly over floors, walls, ceilings and other surfaces. Adult females lay their eggs in secluded places, depositing 1, 2 or more eggs per day, potentially hundreds during their lifetime. The eggs are tiny (about the size of a dust spec), whitish and hard to see without magnification, especially on light-colored surfaces. When first laid, the eggs are sticky, causing them to adhere to surfaces. At room temperatures, bed bug eggs hatch in about a week. Newly emerged nymphs are straw-colored and no bigger than a pinhead.

As bed bugs grow they molt, shedding their skin five times before reaching maturity. A blood meal is needed between each successive molt. Adult females also must feed in order to lay eggs. Under favorable conditions (70-80° F), the bugs can mature fully in as little as a month, producing multiple generations per year. Cooler temperatures or limited access to blood prolong the development time.

Bed bugs are very resilient. Nymphs and adults can persist months without feeding which is unusual for most insects, although when a host is available, they generally feed about once a week. Bed bugs depend on a blood meal for every part of their life cycle, from molting, to egg-laying, to triggering mating. The ability to survive without a blood meal is longer at cooler temperatures –― potentially up to a year or longer at 55° F or less. In temperature-controlled buildings, a more typical duration is about 2 to 6 months. Consequently, it is usually impractical to leave buildings unoccupied in hopes of ‘‘starving out’’ an infestation. When infested dwellings such as apartments are vacated, bed bugs often disperse to nearby units, or reduce their activity until the unit is reoccupied.

Bed bugs are active mainly at night. During the daytime, they prefer to hide close to where people sleep. Their flattened bodies enable them to fit into tiny crevices – --especially those associated with mattresses, box springs, bed frames and headboards. Bed bugs do not have nests like ants or bees, but do tend to congregate in habitual hiding places. Characteristically, these ‘“refugium’” areas are marked by dark spotting and staining, which is the dried excrement of the bugs. Also present will be hatched and un-hatched eggs, the tannish shed skins of maturing nymphs, and the bugs themselves[LA5].”

Michael Potter, “Bed Bugs,” Entomology Department, University of Kentucky, available at .

B.WHY BEDBUGS MATTER

“Bed bugs are a public health pest. While bed bugs have not been shown to transmit disease, they do cause a variety of negative physical health, mental health and economic consequences. Some of these effects include:

Allergic reactions to their bites, which can be severe. Effects ranging from no reaction to a small bite mark to, in rare cases, anaphylaxis (severe, whole-body reaction).

Secondary infections of the skin from the bite reaction, such asimpetigo,ecthyma, andlymphangitis.
Mental health impacts onpeople living in infested homes. Reported effects include anxiety, insomnia and systemic reactions.”

Additional health effects reported in medical literature have included: facilitated secondary infections from scratching bites, causing and worsening asthma, blister-like skin eruptions, true anaphylactic reactions, and anemia.

Armed Forces Pest Management Board, Technical Guide 44, available at .

“Economically, bed bug infestations are also a burden on society. Although the exact dollar amount is not known, the economic losses from health care, lost wages, lost revenue and reduced productivity can be substantial. The cost of effectively eliminating bed bugs may be significantly more than the cost of eliminating other pests because bed bug control usually requires multiple visits by a licensed pest control operator and diligence on the part of those who are experiencing the infestation. Control in multi-family homes is much more difficult than in single family homes because bed bugs frequently travel between units, either by direct transport by humans or through voids in the walls. There are additional costs and complexities associated with coordinating and encouraging participation from multiple residents.”

Joint Statement on Bed Bug Control in the United States from the U.S. Centers for Disease Control and Prevention and the U.S. Environmental Protection Agency, available at

[LA6]

“Don't blame the tenant for the problem, since often there is no fault involved. A culture of blame can cause residents to delay reporting (which leads to more extensive infestations, which are far more expensive to control).”

Bedbugs can hitchhike on luggage, clothing, bedding and boxes. They may be picked up on clothing when visiting an infested location. Used upholstered furniture or used clothing is a source of infestation as well. Because these insects are so small that they go unnoticed, the threat of blame holds less deterrence value than the fear of infestation. Essentially, nobody ever invited bedbugs into their home, or engaged in preventive measures out of fear of litigation.

Frequently, landlords will want to avoid inspecting adjacent apartments when there is an infestation. However, the adjacent unit is very likely to be infested, or may even be the original source of infestation. Whenever a unit has an infestation, units on either side, as well as above and below the infested unit should be inspected before and during treatment. A vacant unit may harbor bedbugs, which become less active when there is no host present, and are therefore more difficult to detect.

Bed bug Action Plan for Apartments, Dini Miller, Ph.D. Dept. of Entomology, Virginia Tech

IVC.TREATMENT CHALLENGES

Heat treatment is one option for dealing with a bedbug infestation. Heating an apartment to 135º F drives the insects from the refugium, increasing their activity. When a bedbug reaches a temperature of 114º-115º, the “thermal death point” is reached, and the insect dies. This is a very effective method of extermination, but architectural features that are thermal sinks may reduce its thoroughness.

Chemical fumigation is a possible treatment strategy, when an entire building is compromised. This is expensive but effective, requiring that a whole building be evacuated, tented, and gassed. It can be used in locations where residents are unable to effectively remove clutter, such as housing for elderly or health impaired residents. Chemical fumigation can also be done on residents’ possessions in a sealed chamber. Sulfuryl fluoride, the gas used, goes by a variety of commercial names, such as Vikane or Master Fume or Zythor. Any fumigation treatments must be done by a knowledgeable exterminator.

Traditional treatments can be effective but come with some obvious challenges. First, because eggs are resistant to insecticides, repeat treatments are necessary. Also, the exterminator may require that residents exhaustively bag all their possessions, strip all beds, and launder every item of clothing every time there is a treatment. This leaves residents living out of plastic bags for weeks or months on end, forced to launder and re-launder clothing and bedding. It also disrupts the bedbugs, dragging them to new parts of the apartment, and potentially contributing to their spread. Exterminators complain that residents often fail to comply with their demands, but it is easy to understand how “bedbug fatigue” could prevent ideal compliance.

Finally, the following wisdom from Professor Dini Miller, the Virginia Tech bedbug expert:

“Requiring that residents pay for bed bug remediation has resulted in widespread infestations. If you are to have any hope of controlling your bed bug issues you must be prepared to pay the bill. If your complex is not paying for bed bug management, you have no control over the bed bug infestations (you might not even be aware of them) or the potential contamination of your buildings by residents attempting to control the bed bugs themselves.”

“Bed Bbug Action Plan for Apartments,” Dini Miller, Ph.D., Dept. of Entomology, Virginia Tech, available at

D.CAUSATION AND FAULT[LA7]

1.Causation (“Where Did They Come From?!”)

Bed Bug Action Plan for Apartments, Dini Miller, Ph.D. Dept. of Entomology, Virginia Tech, available at

“Proving causation in the bedbug context is difficult. To prove causation, the landlord likely will need a pest management professional (exterminator) to testify as an expert witness. But even with an expert witness, given the size of bedbugs, their ability to hide in small places and survive in most environments, and the speed with which bedbug infestations spread, causation may be hard to prove.”

Rachel D.G. Horvath, “When Bed Bugs Bite: Who Pays for Bedbug Extermination—Landlord or Tenant?,?” Opening Statement, VBA Young Lawyers Div., Vol. 2 No. 3 (Summer 2014), available at

2.Fault (Figuring out whether anyone is “at fault” for infestation)

[B]ed bugs are not linked to poor sanitation / house keeping…” Memorandum for Owners and Agents, “The Reemergence of Bed Bug Infestation within Our Communities,” Edward J. Hinsberger, Director, Chicago Multifamily Hub, 5AHMLA, March 15, 2011, available at

Additional highlights of the March 15, 2011 memo include the following:

● Bed bugs are excellent hitchhikers and can be transported to your home from literally any place and by anyone that has been in contact with the pest.

● Bed bugs can be introduced to a property by simply hitchhiking on the clothing or belongings of residents or visitors.

● Bed bugs could be introduced to a property by the landlord, landlord’s employees, maintenance personnel, contractors, vendors, government representatives, or anyone who has or had access to a property.

● No one is immune from transporting these pests from one location to another.

●It is virtually impossible to prove fault with regard to who may have created the bed bug infestation within a property.

Centers for Disease Control, Bed Bug FAQs

Q: How did I get bed bugs?

A: Bed bugs are experts at hiding. Their slim flat bodies allow them to fit into the smallest of spaces and stay there for long periods of time, even without a blood meal. Bed bugs are usually transported from place to place as people travel. The bed bugs travel in the seams and folds of luggage, overnight bags, folded clothes, bedding, furniture, and anywhere else where they can hide. Most people do not realize they are transporting stow-away bed bugs as they travel from location to location, infecting areas as they travel.

Q: Who is at risk for getting bed bugs?

A: Everyone is at risk for getting bed bugs when visiting an infected area. However, anyone who travels frequently and shares living and sleeping quarters where other people have previously slept has a higher risk of being bitten and or spreading a bed bug infestation.

III.WHAT DUTIES DO LANDLORDS HAVE?

A.Landlord’s obligations: §§55-225.3 (Virginia Landlord-Tenant Act), 55-248.13 (Virginia Residential Landlord-Tenant Act), 55-248.43 (Manufactured Home Lot Rental Act)

1.Follow building and housing codes affecting health and safety.

2.Make all repairs needed to keep the place fit and habitable.

3.Keep common areas clean and safe.

4.Keep in good and safe working order all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances that the landlord supplies or must supply.

5.Maintain premises to prevent accumulation of moisture and growth of mold.

6.Provide and maintain receptacles for garbage, and provide for removal of same.

7.Supply water, hot water, air conditioning if provided, and heat in season; unless the tenant alone controls the heat, air conditioning, or hot water, or unless provided directly by a utility company to the tenant on a separate meter.

8.Parties may agree in writing that tenant performs duties 3, 6 and 7, (c, f and g, above) only if done in good faith and not to evade landlord obligations.

9.See, Isbell v. Commercial Inv. Assoc., 273 Va. 605, 644 S.E.2d 72 (2007); Steward v. Holland Family Props., LLC, 284 Va. 282, 726 S.E.2d 251 (2012) – tenant may not recover damages for personal injuries resulting from a landlord’s violation.

10.No common law implied warranty of habitability. See, Roche v. Lincoln Prop. Co., 2006 U.S.App.LEXIS 8588 (4th Cir. 4/7/06).

IIIII.WHAT DUTIES DO TENANTS HAVE?

A.Tenant’s obligations: §§55-225.4, 55-248.16, 55-248.44

1.Comply with tenant duties imposed by building and housing codes affecting health and safety.

2.Keep rented space and plumbing as clean and safe as conditions permit.

3.Keep premises free from insects & pests and promptly notify landlord of insects or pests (only in VRLTA & MHLTA, not in Virginia Landlord & Tenant Law).

4.Use all utilities and appliances reasonably, and get rid of trash.

5.Not destroy or mess up the property, or allow anyone else to.

6.Not disturb neighbors, or allow anyone else to.

7.Use reasonable efforts to prevent accumulation of moisture and growth of mold.

8.Not paint without landlord’s prior written approval if premises built prior to 1978 and lease requires prior written approval.

9.Be responsible for the conduct of persons on the premises with tenant’s consent, whether known by the tenant or not.

10.Follow the lease and reasonable rules of the landlord.

IIIIVI.WHAT CONDITIONS ARE ACTIONABLE?

A. Actionable conditions: §§55-225.12, 55-248.27, 55-248.48

1.Conditions which constitute material noncompliance by the landlord with the rental agreement.

2.Conditions which constitute material noncompliance by the landlord with provisions of law.

3. Conditions which, if not promptly corrected, will constitute a fire hazard or serious threat to the life, health or safety of occupants thereof, including but not limited to:

a. Lack of heat or hot or cold running water, except if the tenant is responsible for payment of the utility charge and where the lack of such heat or hot or cold running water is the direct result of the tenant's failure to pay the utility charge.

b. Lack of light, electricity or adequate sewage disposal facilities.

c. An infestation of rodents.

d.The existence of paint containing lead pigment on surfaces within the dwelling.

IVIV.WHAT ABOUT BED BUGS?

A. Virginia law does not specifically mention bed bugs and does not explicitly say whether landlords or tenants are responsible for getting rid of bed bugs. Virginia law does require all landlords to follow building and housing codes affecting health and safety, and to make all repairs needed to keep the place fit and habitable. Because bed bugs make rental housing not habitable, this means landlords are responsible for getting rid of bed bugs.

B.Under Code of Virginia §55.248.16, effective July 1, 2017, “the tenant shall be financially responsible for the added cost of treatment or extermination due to the tenant’s unreasonable delay in reporting the existence of any insects or pests and be financially responsible for the cost of treatment or extermination due to the tenant’s fault in failing to prevent infestation of any insects or pests in the area occupied.” (emp. added)

C.See, Powell v. John E. Hughes Orphanage, 148 Va. 331, 136 S.E. 637 (1927) –

“‘Fault,’ as used in the statute,meansthe ‘omission’ of some duty which the tenant ought to perform, and is practically synonymous withnegligence.So that the liability of the tenant, under the statute, becomes a question of negligence.” (Italics in original.)

D.Note: this is part of the VRLTA, but not part of the Virginia Landlord-Tenant Act, Code of Virginia §55.225.4. Effective July 1, 2017, all tenancies are covered by the VRLTA except:

1.Where the landlord is a natural person, an estate, or a legal entity that owns no more than two single-family residential dwelling units in its own name subject to a rental agreement, and

2.Where the landlord opts out of the VRLTA by so stating in a rental agreement with a tenant.