When a tenant is sleeping tight and the bed bugs bite, litigation is often contemplated, but rarely ends up in the courtroom.
With infestations on the rise nationally, local landlords and lawyers have seen an increase in the number of complaints tied to the persistent pest, but the vast majority of disputes never reach the courtroom.
The reason is that while the existence of bed bugs is easy enough to prove, determining how they got there and who is to blame is difficult, which rarely makes litigation worthwhile.
Milwaukee attorney Tristan R. Pettit said it is easier to defend a bed bug case because of the difficulty in proving a claim.
In the one bed bug trial the Petrie & Stocking lawyer had, he successfully represented a landlord who was sued for back rent for allegedly causing and then failing to treat an infestation.
The case was dismissed as the tenant could not meet the burden of proof to show the landlord was responsible for the problem.
“We really didn’t believe anything the tenant was saying and we were prepared to prove the tenant brought them in, but it never got that far,” Pettit said.
Wisconsin statute dictates that landlords have a duty to maintain a habitable residence for tenants, to include structural maintenance, unless repairs are necessary due to the negligence or improper use of the premises by the tenant.
If a tenant carries in a couch off the street and soon after bed bugs invade their apartment, landlords have a strong argument that they aren’t liable for the problem, said Herrick & Kasdorf attorney Juscha E.M. Robinson.
Prior to joining Herrick & Kasdorf in Madison, Robinson worked for Tenant Resource Center, Inc., a nonprofit organization providing information about housing laws to tenants and landlords around Wisconsin.
“There is definite pushback from landlords that this is the tenant’s fault and therefore they are not responsible for property lost to bed bugs,” she said.
If bed bugs are suspected in an apartment unit, landlords said they try to work with tenants to mitigate the problem. Property owners often pay for an inspection and generally attempt to work out an agreement with the renter, depending on the severity of the infestation.
Susan Ipsarides, Portfolio Director at Midwestern property management company StuartCo., said that generally, if inspectors determine a source, she will negotiate with a tenant to split the cost of treatments, which tend to be one a month for three months. Treatment totals are about $5,000 and Ipsarides said tenants often pay after the fact, if at all. For those who agree to pay, but don’t, the cost is usually deducted from their security deposit once they leave or ends up on their credit report as a balance owed to the property manager.
But the reality for property owners is they are often on the hook for the cost of eradicating the pests, regardless of the source, because tenants can’t cover the expense of effective treatments.
According to the City of Milwaukee Department of Neighborhood Services, proven methods for eliminating bed bugs, such as “thermal remediation,” can cost between $1,000 and $6,000.
“The school of thought is to pass along the cost to residents if they are the ones who brought them in,” said Ipsarides. “Unfortunately, if they don’t have the money, I have to eat that cost.”
Landlords are also willing to avoid the negative publicity that comes with litigation over bed bugs and come to an agreement with tenants for rent discounts or termination of the lease.
Ipsarides recently had a tenant vacate after bed bugs were found and she withheld the security deposit to help cover extermination costs.
“Once they get the problem tenant out, landlords make a business decision whether to go after the tenant,” Robinson said. “My guess is there isn’t a whole lot of that.”
For attorneys who represent tenants, there is also the element of whether it’s worth it to pursue a bed bug case.
Wassel, Harvey & Schuk attorney Brian A. Schuk frequently represents renters in landlord-tenant issues and said one of the big concerns is getting paid, because tenants by nature don’t have any money.
“I think the question from a renter’s perspective is ‘what do you want to do?’” he said. “If a tenant just wants to move out, forget about landlord-tenant law, there is always contract law.”
Jack Zemlicka can be reached at firstname.lastname@example.org.