Thursday, 30 October 2014

Bedbugs: Can the Landlord Make a Tenant Pay the Cost of Treatment

It is not infrequent that I get calls from tenants and landlords alike asking about the costs that go with dealing with bedbugs.  Landlords, most often, are concerned about the costs of seemingly never-ending treatment by professional pest control contractors.  Landlords want to pass on the costs of treatment to the tenants or sometimes more specifically to tenants they have identified through whatever means as the source of the infestations.

Tenants of course, are extremely unhappy about the costs that they bear as a result of infestations.  It takes a lot of time and hassle to get ready for a bedbug treatment.  At a minimum, a tenant will have to take all washable clothing, jackets, fabrics, stuffed toys, and wash them and dry at high temperatures to kill any bugs.  Further, tenants will have to bag their items, move the furniture in their home and be ready to be inconvenienced for an extended period of time.  Some property might also have to be thrown out as pest treatment for some things just aren't possible.

One fact that everyone can agree upon is that dealing with bedbugs is an expensive and highly disruptive process.

So, can a landlord make a tenant pay for the costs of treatment?  The straightforward answer, in the vast majority of cases is "no".  For the most part, maintaining a rental property to a standard that is fit for habitation requires a landlord to spend the money to treat for pests.  Bedbugs, ants, cockroaches are all part of the same over all problem and are the responsibility of the landlord.  At the time of writing this article I am unaware of any Board decisions that impose the entire cost of pest control treatment on a tenant.

There are, however, some exceptions to the landlord being solely responsible for treatment costs.  The presence of bedbugs, specifically, is something that is very difficult to source.  How did the bedbugs get in the unit?  The presence of bedbugs is not usually attributable to the condition of the building.  Nor is their presence necessarily attributable to whether a tenant is clean and maintains their unit.  Bedbugs can infest a perfectly constructed and new building and further they can infest a perfectly clean and meticulously maintained apartment.  The fact is that bedbugs can hitch a ride into any kind of building--in furniture, clothing, luggage, and even in new furniture that comes into contact with old furniture in moving trucks.

The point about bedbug infestations is that it is incredibly difficult to determine where exactly the bugs came from.  There are, of course, exceptions.  Some known risky sources for bedbugs is used furniture, stereo equipment and even used books.  In buildings where tenants source furnishings for their units from "free" sources or used places there tends to be a higher incidence of bedbug infestation.  Where it becomes increasingly clear that a particular tenant is introducing bedbugs into a unit or building by bringing "risky" furnishings into the building it may indeed be possible to bring eviction proceedings against the tenant for doing so.  It is possible to assert that the costs associated with bringing infested furnishings into the apartment complex--contrary to an agreement not to do so--can be the basis for claiming the costs of bedbug treatment.  In my experience, claims founded on such allegations tend to work after numerous treatments and observations of the tenant introducing bedbug infested furnishings into their unit.

Another avenue of possible financial recovery for bedbug treatment against a tenant is when the tenant fails to adequately prepare for treatment.  The ability of bedbugs to survive treatment is quite high.  For treatment to have the best possible chance of success, a tenant is required to prepare their unit for treatment.  Pest control companies normally have a unit preparation sheet that sets out a whole list of things that need to be done to make a unit ready for treatment.  That sheet needs to be delivered to the tenant well in advance of the intended treatment and it needs to be stressed to the tenant that the instructions need to be complied with.  While many landlords don't do it, I strongly urge landlords that I represent to not only deliver the instructions sheet but to also contact tenants to ask if they need any help in complying with the instructions.  It is in the interest of both the landlord and the tenant that a unit be properly prepared for treatment.

If a tenant fails to prepare a unit properly for treatment the landlord will normally receive a report from the pest control company that the unit was not sprayed as it was not properly prepared or that the unit was treated but that the failure to prepare it properly likely will mean that treatment will not be effective.  The end result is that the cost of treatment will increase as the pest control company will  be invoicing the landlord for multiple treatments or wasted attendances due to incomplete preparation of the unit for treatment.  These costs can indeed be used in a Notice of Termination and charged back to a tenant if there is no good excuse for the failure to prepare the unit for treatment.  In this respect, having documented not only the delivery of the preparation sheet but also the inquiry to the tenant about them needing "help" to prepare is useful evidence.

In summary, in the vast majority of situations, the cost of treating for bedbugs is the sole responsibility of the landlord.  Bedbugs are a pest, like other pests, that simply are a reality of modern living that the landlord needs to anticipate as part of its maintenance obligation.  The same is true with respect to the impact of bedbugs on tenants living and their property.  For the most part, so long as a landlord follows the advice of a licenced pest control company and that advice is comprehensive and sound, a landlord will not be liable to a tenant for the inconvenience associated with a bedbug infestation.

Michael K. E. Thiele

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.