Although asbestos is no longer widely used in construction, it is still present in many rental properties built before 1981. Insulation, heating ducts, ceilings (especially “popcorn” ceilings), vinyl flooring, roofing, drywall, and plaster are just a few examples of common asbestos-containing materials in older buildings. So long as asbestos is intact, it isn’t much of a health risk. However, renovations or other disturbances to a building’s structure or fixtures (such as damage from an earthquake, collapse, or even 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.
Just because asbestos is present in a rental does not mean a landlord is legally obligated to remove it. When asbestos is not in danger of becoming airborne through deterioration or disturbance, the law doesn’t require removal.
However, federal and state laws might require landlords to test for, disclose the presence of, and even remove asbestos in certain situations.
Federal Occupational Safety and Health Administration (OSHA) laws apply to certain landlords in all states. (Although states can pass their own asbestos laws, their laws must be at least as restrictive as OSHA’s.)
OSHA’s rules regarding to asbestos 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 of this vintage 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:
The exact protective measures landlords must take in their buildings varies, and depends on how workers will interact with asbestos. For example, a landlord who hires custodians to clean areas with intact asbestos tile might have to only 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.
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.
Aside from the fact that landlords must comply with OSHA’s rules (which in effect require all landlords of pre-1981 buildings to take at least minimal protective measures), 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.
A tenant could argue that because asbestos poses such serious health risks, its presence is a breach of the implied warranty of habitability—especially when signs of deferred maintenance or serious wear and tear indicate that asbestos fibers could be airborne. When a landlord fails to provide a habitable residence, the law might allow tenants to break their lease, move out without notice, withhold rent, and sue the landlord for damages. (Before taking action, though, tenants should consider contacting a local landlord-tenant attorney about what self-help measures are allowed under their state and local laws.)
When landlords disclose the presence of asbestos, tenants can still choose to live in the rental. Because the danger has been disclosed, though, they usually cannot sue the landlord later if the asbestos has not been removed—unless the landlord promises to remove the asbestos and then fails to do so.
Landlords can be held liable for tenant injuries in certain situations. When landlords who know (or should know) of the presence of asbestos fail to disclose it, a court might find them responsible under one of many possible legal theories. 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.
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. Tenants who believe they might have been injured from asbestos in their rental should consider contacting a personal injury attorney to learn more about asbestos exposure and the possibility of bringing a personal injury lawsuit.