A landlord is not under an absolute obligation to remove asbestos. A landlord is under an obligation to notify tenants of the presence of asbestos. If asbestos is present and poses a risk, a tenant could, among other things, legally force the landlord to choose between removing the asbestos or losing rent. This article details the rules and regulations affecting a landlord’s responsibilities for asbestos in a residential property.
Federal OSHA (Occupational Safety and Health Administration) laws apply to all states. Your state may have other laws affecting asbestos, but the OSHA laws will apply as well. A state can’t get around OSHA requirements by making a different law, but it can make a stricter law.
Under OSHA regulations, a residential landlord is required to make his or her building safe from asbestos if he or she employs more than 10 people or he or she hires independent contractors to make repairs. Under OSHA regulations, it is also assumed that any building built before 1981 has asbestos in it. Therefore, the only way a landlord is not required to test for asbestos is if the building is newer or if the landlord does absolutely all repairs him or herself.
The effect of the OSHA rules is that practically all residential landlords are going to be required to test for asbestos. If asbestos is discovered, the law (not just OSHA regulations) requires that the presence of any dangerous substances be disclosed to tenants. On a related note, if a landlord has dodged asbestos inspections, he or she must also disclose to tenants that he or she does not know whether asbestos is present in the building.
However, simply because asbestos is discovered does not mean it is automatically so hazardous that it must be removed.
Asbestos is generally contained in materials like older insulation, vinyl tiles and heating duct wrap. It is dangerous when it becomes airborne. That can happen when the materials are deteriorating or when the materials are disturbed, for example during construction.
If asbestos is not in danger of becoming airborne through deterioration (which is what an inspection reveals) and it will not be disturbed, the law does not require a landlord to remove it. The law does require the landlord to inform the tenant of the asbestos and the kinds of activities that might disturb the asbestos, creating a potentially dangerous condition.
If asbestos is potentially airborne, a tenant will have a variety of legal options relating to damages, depending on the circumstances of the case. However, the options for getting the landlord to remove the asbestos are more limited (although this may vary from state to state).
Generally, the most the tenant can do is threaten to break the lease or withhold some portion of the rent until the asbestos is removed or otherwise made safe. Tenants can legally do this under a landlord-tenant legal concept known as the “warranty of habitability,” which is basically an implied guarantee that the rental property is livable.
The tenant can also simply go on living in the apartment, but because the danger has been disclosed, he or she can’t decide to 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.
So, as far as removal is concerned, the tenant’s remedies really boil down to giving the landlord a choice between losing rent or removing the asbestos. Depending on the potential cost, a landlord may decide he or she would rather cease to rent out the property than do the repairs. At that point, the lease terms and state law could mean that the landlord has the right to kick the tenant out of the “condemned” property or that the tenant has the right to live rent-free in the hazardous apartment at his or her own risk.
Keep in mind that this discussion does not address a tenant’s remedies if he or she has been exposed to airborne asbestos and the landlord knew or should have known about the threat of exposure. The landlord’s potential liability for money damages to the tenant could be quite high in those circumstances. See AllLaw’s section on Chemical & Toxin Exposure Injury Claims.