Condo Media - October 2009 - 22

ASKED & ANSWERED Sleep Tight Who Is Responsible for Eliminating Bedbugs? Q A QUESTION: We’ve been hearing a lot in the news about different communities, especially major cities, having problems with bedbugs. Is this something that members are responsible for in their own units? ANSWER: Yes, unless and until they migrate into common areas and other units, which these unpleasant beasties tend to do rapidly and aggressively. At that point, these unwelcome guests will probably become an equally unwelcome problem for the association and its governing board. A little background may be helpful, but only a little — who wants to spend a lot of time reading about bed bugs, after all? Just the thought of them is enough to make most people itch. Until fairly recently, most of us encountered bed bugs only in books about much earlier times. The phrase, “sleep tight, don’t let the bed bugs bite” goes back to the 1920s or so, before foam mattresses and box springs became common, when ropes were used as slats supporting mattresses that were often filled with hay — a natural habitat for bugs of all kinds. Tight ropes, presumably, kept the bugs away. Although mattresses are no longer stuffed with hay, the bugs have begun cropping up in beds again in recent years — a product of international travel and reduced pesticide use. Do an Internet search on bedbugs, and you’ll find hundreds of references — how to deal with them, law journal articles analyzing liability issues, ads from pesticide companies offering to eliminate them — there’s even a blog devoted to the topic. Among other things, you will discover that bedbugs: are unrelated to poor housekeeping; hide in furniture, tiny crevices and other hard-to-reach places; and require specialized extermination techniques. The “bombs away” strategy used for other insects can actually make a bedbug infestation worse. Understanding how bedbugs behave and knowing that the problem is widespread won’t provide much comfort to residents who are being bitten or to condominium boards fielding complaints from owners demanding a solution. In a rental housing setting, the question of who’s responsible for dealing with an infestation is fairly straightforward, notes Daniel Polvere, a partner in the Massachusetts law firm McCullough, Stievater & Polvere. The Sanitary Code in Massachusetts (and many other states) requires landlords to keep dwellings free of insects and pests. In condominiums, this question, like many others, becomes a bit murkier. But Polvere and Ellen Shapiro, a partner in the Massachusetts law firm Goodman, Shapiro & Lombard, agree: A condominium owner who discovers bedbugs in his or her unit is responsible for exterminating them, just as he or she would be responsible for fixing a leaky faucet or a broken dishwasher. But if several owners are complaining about bedbugs, the board should step in, like it would if a leak originating in one unit damaged, or threatened to damage, common areas and other dwellings in the community. The board confronted with multiple bedbug complaints should contact a company with expertise dealing with the problem, advises Shapiro. And, it should follow the treatment plan that company recommends. Left untreated, an infestation will only become worse as the bugs continue to multiply and migrate. If the exterminator can trace the original source of the problem (which, Shapiro says, they are usually able to do), the board may be able to charge that owner for the treatment costs. With that prospect in mind, she suggests that boards hire an exterminator who will be prepared to give an expert opinion in court, if necessary, to secure a judgment against the responsible owner. Polvere thinks establishing liability may be difficult, however, if the owner of the unit in which the bed bugs originated took reasonable steps to deal with the problem — for example, hiring an exterminator immediately after discovering the bugs. “I don’t think this is a strict liability area,” Polvere says. “It’s more likely to be a question of negligence — failure to use reasonable care.” The courts may have to sort out these legal liability questions at some point, but most condominium associations would no doubt prefer to avoid them. Education might help. Informing owners about the return of bedbugs and the risks they pose to the community might increase the likelihood that affected residents will deal quickly and effectively with the problem in their own units before it becomes a problem for others. CM CONDO MEDIA • OCTOBER 2009

Condo Media - October 2009

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