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, we'll learn more federal and state regulations that might require landlords to test for, disclose the presence of, and even remove asbestos from a rental property, including:
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 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 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.
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 certain 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:
Before taking action, tenants should consider contacting a local attorney who specializes in tenant rights about what self-help measures are allowed under their state and local laws. Tenants should also check out Nolo's extensive coverage of landlord-tenant laws.
When landlords disclose the presence of asbestos, tenants can still choose to live in the rental. Because the danger has been disclosed, though, tenants usually can't 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 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 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.
If you live in a rental property and suspect that there is asbestos on the premises 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. A lawyer can talk to you about your legal rights and options for tenants exposed to asbestos.