Landlord Liability for Asbestos in Rentals

Residential buildings constructed before 1981 might contain significant amounts of asbestos building materials. Asbestos is a group of naturally occurring minerals that are resistant to heat and corrosion. Asbestos was commonly used in products like insulation, heating ducts, ceilings (especially "popcorn" ceilings), vinyl flooring, roofing, and drywall until the 1970s.

So long as asbestos is intact, it isn't much of a health risk. But renovations and disturbances (like earthquake damage or even just punching a hole in a wall) can release asbestos fibers into the air. Inhaling or ingesting these fibers can cause mesothelioma and other serious health issues.

In this article, you'll learn how to spot asbestos in your rental and how to protect yourself when you find it.

You'll also learn about the federal and state regulations that might require landlords to test for, disclose the presence of, and even remove asbestos from a rental property, including:

• OSHA asbestos regulations designed to protect people who work in areas that might contain asbestos, and
• a tenant's right to a livable place (the implied warranty of habitability).

You (or your attorney if you decide you need one—see below) can use these regulations to convince your landlord to take action.

How Can I Tell if There Is Asbestos in My House or Apartment?

Many houses and apartments built before the 1980s contain asbestos. And contractors might have used stockpiled asbestos-containing materials to build homes in the 1990s. You typically can't identify asbestos-containing material just by looking at it, unless the material is labeled. But, according to the United States Environmental Protection Agency (EPA), asbestos is often found in materials like:

• attic and wall insulation
• vinyl flooring
• roofing and siding shingles
• textured paint used on walls and ceilings (like "popcorn ceilings")
• walls and floors around wood-burning stoves
• hot water and steam pipes
• oak and coal furnaces and door gaskets, and
• heat-resistant fabrics.

What Should I Do If I Suspect There Is Asbestos in My Home?

If you think you've found asbestos in your rental house or apartment, don't freak out. If the asbestos-containing material is in good condition, it's unlikely to harm you. If the material is in good shape, leave it alone and ask your landlord to hire an asbestos inspector to test samples and come up with a plan for monitoring, repairing, or removing the asbestos.

If the asbestos-containing material is damaged or might be disturbed (for example, during a remodel), don't touch the material. Asbestos is most harmful when it's airborne and you can inhale it. Ask your landlord to hire an asbestos contractor to repair or remove the asbestos.

Landlord Responsibility for Asbestos in Rentals

Landlords sometimes have a duty to take action against asbestos in rental apartments and houses. Here is a breakdown of when landlords might have a legal obligation to do something about asbestos in their rentals.

Federal Regulation of Asbestos

Federal Occupational Safety and Health Administration (OSHA) laws apply to certain landlords in all states. (States can pass their own asbestos laws, but their laws must be at least as restrictive as OSHA's.)

OSHA's asbestos rules apply to every building constructed before 1981, even if there's no plan to remodel or otherwise disturb the structure. (OSHA presumes that all buildings from this time contain asbestos). The rules also apply to newer structures known to contain asbestos.

Landlords who manage buildings built before 1981 must follow OSHA's regulations if they:

• hire any (even just one) outside contractors for repairs or maintenance, regardless of how many rental units they oversee, or
• employ more than 10 people.

The exact protective measures landlords must take in their buildings varies from state to state, and depends on how workers will interact with asbestos. For example, a landlord who hires custodians to clean areas with intact asbestos tile might only have to provide instruction about asbestos safety, while a landlord overseeing a renovation where asbestos is being disturbed likely will have to test for asbestos, train workers, implement protection measures, and perform mitigation.

An employment attorney can advise landlords about how to comply with OSHA's regulations. Learn more about employer liability for asbestos exposure.

State Regulation of Asbestos

Although many states require disclosure of the presence of certain hazardous materials, such as mold, no state requires landlords to make asbestos-specific disclosures. However, this doesn't mean that state law won't hold landlords responsible for asbestos-related injuries.

In addition to some landlords having to comply with OSHA's rules (discussed above), landlords have a duty under most states' laws to provide tenants with livable rentals. This duty—also known as the implied warranty of habitability—exists even when it's not explicitly mentioned in a lease or rental agreement. Under the implied warranty of habitability, every tenant has a right to live in a rental that meets basic health and safety standards, including a rental free of significant health hazards like asbestos.

A tenant's claim that the presence of asbestos is a breach of the implied warranty of habitability is particularly strong when signs of deferred maintenance or serious wear and tear indicate that asbestos fibers could be airborne.

If a landlord doesn't fix or address a serious problem, like a dangerous level of asbestos, tenant options might include:

• having the problem repaired by a professional and deducting the cost from the rent
• withholding rent, and
• moving out without notice.

Tenants can still choose to live in a rental after their landlords disclose the presence of asbestos, but they probably won't be able to sue them later if the asbestos isn't removed—unless the landlord promises to remove the asbestos and then doesn't.

Landlord Liability for Tenants' Asbestos-Related Injuries

Landlords can be held liable for tenant injuries in certain situations. When landlords know (or should know) of the presence of asbestos and fail to disclose it, a court might find them responsible under one of many possible legal theories (often negligence). When tenants can demonstrate that they were exposed to asbestos in their rental, the landlord's potential liability for money damages to the tenant can be quite high. Common types of damages include:

• medical expenses
• lost wages (for time missed from work due to the injury)
• pain and suffering, and
• loss of normal life (the decreased quality of life as a result of the injury).

Medical professionals can often confirm asbestos exposure based on a patient's diagnosis and symptoms. When a tenant shows signs of asbestos-related health problems, the next step is to trace the source of their exposure.

When Do I Need to Hire an Asbestos Attorney?

You can probably ask your landlords to hire a professional asbestos inspector and contractor on your own. But if your landlord is resistant, you might want to talk to a lawyer. A lawyer can help you draft an effective letter to your landlord (see below) and talk to you about your legal rights and options for tenants exposed to asbestos.

If you are thinking about taking action, like withholding rent, you should first talk to a lawyer who specializes in tenant rights about what self-help measures are allowed under your state and local laws. Tenants should also check out Nolo's extensive coverage of landlord-tenant laws.

If you believe you might have been injured from asbestos in your rental house or apartment, seek medical attention and then talk to a lawyer who specializes in asbestos litigation or personal injury to learn more about asbestos exposure and how to file a personal injury lawsuit.

Next Steps

If you live in a rental property and suspect that there is asbestos in your home that your landlord isn't managing properly, ask your landlord, in writing, to have the material inspected by a trained professional. Use the Sample Letter to a Landlord About Health and Safety Concerns as a template for your own letter regarding deteriorating asbestos. You might be able to ask your landlord to reimburse you for alternative housing until the asbestos-related work is done. Use the Sample Letter Requesting Reimbursement for Temporary Housing as a model in preparing this type of letter.

You should also consider talking to a landlord-tenant law lawyer or personal injury lawyer, or both. Learn more about how to find an excellent lawyer. You can also fill out the form at the top or bottom of this page to get connected with an attorney in your area for free.