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Addressing Bed Bugs through Law: Challenges and Limitations

posted on Wed, Jan 22 2014 3:09 pm by Denise Chrysler,

Bed bugs are a real problem — they bite and disrupt sleep, and cause great misery throughout the U.S. and globally.  Legal approaches to address bed bugs in rental housing have been pursued at the federal, state and local level; however, there are no studies to evaluate the effectiveness of these approaches.

Recently, legal services attorney Peyton Whiteley and entomologist Erik Foster examined the challenges and limitations of using law to address bed bug infestations in a webinar, Bed Bugs: Legal Remedies and Limitations to Eliminating a Community Health Problem. According to Whiteley, code enforcement and public health officials don’t consider bed bugs a public nuisance because they are not known to transmit or spread disease and do not cause damage to structures. For example, the City of Virginia Beach, VA states that it “does not conduct inspections for bed bugs and can’t address infestations under current state and local ordinances” absent a structural defect that allows pests to enter. This means that tenants and landlords must rely on private remedies that assign fault — such as those that apply to residential housing or breach of contract — to address bed bug problems

Foster described the biology of bed bugs, and said laws that attempt to assign fault discourage cooperation, and fail to recognize how easily bed bugs can hitch rides into housing units and spread among apartments. Successful bed bug management requires cooperation of the landlord and tenant, and use of a qualified pest management professional.

Changes to HUD guidelines for subsidized housing reflect the struggle to assign responsibility for a pest that defies simple solutions. In Notice H-2011-20, HUD provided guidance to owners, management agents, and tenants of HUD multifamily insured and assisted properties for bed bug infestations. HUD urged owners to develop an Integrated Pest Management Plan (IMP) and to actively engage residents in efforts to prevent bed bugs. The Notice set out a timeframe for responding to a tenant’s bed bug complaint and prohibited the owner from charging a tenant to cover the cost of bed bug treatment. An owner was also prohibited from denying tenancy to a potential resident on the basis of the tenant having experienced a prior bed bug infestation. Eight months later, HUD issued Notice H-2012-5 to supersede H-2011-20, which eliminated the “tenants rights and responsibilities” section, including the timeframe for responding to a tenant’s complaint, the prohibition on charging tenants for bed bug treatment, and the prohibition on denying tenancy to a potential resident because of a prior bed bug problem.

The National Multi Housing Council, which represents owners, claims that HUD made these revisions at its urging and Congressional pressure, because the original guidance created confusion about best management practices, hamstrung the efforts of owners and property managers to prevent infestations and failed to meaningfully address the financial issues to the owner and resident related to repeat infestations. In contrast, the National Low Income Housing Coalition says the change eliminates important tenant protections and allows landlords to shift the cost of bed bug treatment to tenants.  

Only a few states have specific laws that address bed bugs in rental property. Michigan has five bed bug related bills pending, which illustrate the range of approaches — from explicitly defining rights and responsibilities of tenants and landlords, to eliminating the warranty of habitability for pest infestations:

  • HB 5199 establishes tenant and landlord responsibilities, establishes timeframe for addressing problems.
  • HB 5200 provides explicit authority for health officers to issue public nuisance orders related to "infestations."
  • HB 5201 requires the state health department to develop a model policy regarding the prevention, management, and control of bed bugs for local units of government and local health departments.
  • HB 5037 amends housing law to make a tenant responsible for vermin in his or her unit.
  • SB 0657 amends landlord-tenant law to make a tenant responsible for bed bug control in his or her unit and areas where bed bugs have spread if the unit was certified free of bed bugs when tenant moved in. Would preempt passage of local laws to the contrary.

Local governments continue their attempts to address bed bug infestations. Chicago, which was named the 2013 and 2014 “bed bug capital” by Orkin Pest Company, passed a comprehensive ordinance in 2013 covering prevention and control of infestations in rental housing, condominiums, and cooperative buildings, and establishing standards for sale of second-hand bedding and disposal of bedding  and other property.

Whiteley recommends that we engage community stakeholders to make the case for community solutions, including code enforcement:

  • Schools: children bring in bed bugs; they can’t learn if excluded
  • Employers: employees bring bed bugs into the workplace and impact other employees
  • Unions and employee representatives: home health workers, bus drivers, and others are at risk of bed bug “hitchhikers”
  • Businesses: bed bugs repel tourists and customers, and creates risk of liability

As Foster explains, bed bugs are “environmentally communicable,” potentially affecting everyone. They are not going away; rather, according to the pest management industry, bed bug infestations are on the rise across the country.

More on bed bugs:

Bed Bugs: New Scourge of the Poor?

Bed Bug Control and Legal Authority

This post was prepared by Denise Chrysler, director for the Network for Public Health Law – Mid-States Region at the University of Michigan School of Public Health. She previously served as public health legal director to the Michigan Department of Community Health’s Public Health Administration, where she provided legal advice on a variety of public health issues, including bed bugs.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. The views expressed in this post do not represent those of the Robert Wood Johnson Foundation.

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