Landlord Liability for Asbestos in Rentals

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

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 asbestosis, 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 laws 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 laws to convince your landlord to take action.

How Can I Tell If There's 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. As long as it's 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 have been disturbed (for example, during a remodel), don’t touch it. 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

The federal government regulates workers' on-the-job exposure to asbestos. Though they're primarily meant to safeguard workers, these laws often incidentally benefit residential tenants, too. Most of the rules that directly protect tenants from asbestos exposure are created by states and municipalities like cities and towns.

Here's a breakdown of the main federal and state laws that might require landlords 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 strict 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 that are 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 vary from state to state, and depend 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 other safety related tasks.

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, most don't require landlords to make asbestos-specific disclosures. If they exist, asbestos-disclosure requirements typically apply to buildings constructed before 1981 and newer buildings where asbestos is known to be present. If you're curious about the disclosure requirements where you live, speak to a local attorney or contact your county's building code enforcement department.

Even absent disclosure requirements, state law might 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—called 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 violation 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 landlord discloses 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). If a tenant can demonstrate that they were exposed to asbestos in their rental, the landlord's potential liability for money damages 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. For example, asbestos exposure is the only known cause of asbestosis and mesothelioma. 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 ask your landlord to hire a professional asbestos inspector and contractor. But if the landlord resists or refuses, you might want to talk to a lawyer. A lawyer can help you draft an effective letter to your landlord (see below) and explain your legal rights and options after being made sick by asbestos.

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

If you believe you've been injured from asbestos in your rental house or apartment, seek medical attention. Then talk to a lawyer who specializes in asbestos litigation or personal injury to learn more about how to file an asbestos injury lawsuit.

Next Steps

If you live in a rental property and suspect that there's 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.

You should also consider talking to a landlord-tenant lawyer or personal injury lawyer, or both. When you're ready to move forward, here's how to find an excellent lawyer.