Both landlords and tenants need to know a few things about asbestos in rentals:
- asbestos poses a health risk when it is disturbed by renovations or damage
- landlords must follow OSHA's asbestos-related laws when they hire anyone to perform work in a rental or employ more than ten people, and
- landlords might be liable for asbestos-related injuries to tenants in limited circumstances, such as when the presence of asbestos constitutes a breach of the implied warranty of habitability.
When Is Asbestos a Threat to Tenants?
Many rental properties contain asbestos, a fibrous heat-resistant material that was used in construction. The United States began to phase out widespread use of asbestos in the late 1970s and early 1980s because of the material’s hazardous nature—asbestos can cause mesothelioma and other serious health issues when inhaled or ingested.
The mere presence of asbestos in a rental is not something to be overly concerned about, though. Asbestos poses the greatest health risks when it is airborne—for example, when it is disturbed during construction or remodeling. The law does not require landlords to remove asbestos in rentals so long as there’s no risk that the asbestos will become airborne.
Here’s a breakdown of the laws and circumstances that require landlords to be vigilant about asbestos in their rentals.
Federal Asbestos Laws
Under federal law, landlords who manage buildings constructed before 1981 must follow the Federal Occupational Safety and Health Administration’s (OSHA’s) asbestos-related laws when they:
- hire any—yes, even just one—outside contractors to perform repairs or maintenance, regardless of how many units they manage, or
- employ more than ten people.
The procedures landlords must follow depend on the type of work that will be performed in the rental. For example, when a landlord hires a cleaning crew to clean floors that contain asbestos, OSHA laws might require only that the landlord provide the crew with information about asbestos safety. But when the same landlord is overseeing a renovation that involves replacing floors that contain asbestos, OSHA laws will likely require the landlord to take more serious steps, such as testing, worker training, and mitigation.
An employment attorney can advise landlords about how to comply with OSHA’s asbestos-related regulations.
State Asbestos Laws
No states require landlords to test for or disclose the presence of asbestos. However, most states do require landlords to provide habitable rentals—rentals that meet basic requirements for health and safety. This requirement is known as the implied warranty of habitability, and applies to rentals even when it is not explicitly mentioned in a lease or rental agreement.
Tenants who suspect that their rental contains asbestos could potentially argue that because asbestos poses such serious health risks, its presence is a breach of the implied warranty of habitability. This argument is more likely to be successful if the tenant has evidence that the rental has deferred maintenance or serious wear and tear that indicates possible airborne asbestos.
When a landlord breaches the implied warranty of habitability, the tenants might have the right to break their lease, move out, withhold rent, and sue the landlord for damages. Tenants’ legal options against a landlord who has breached the implied warranty of habitability depend on state and local law, though, so any tenant considering taking one of these drastic steps should consult a local landlord-tenant attorney for advice first.
Should Landlords Disclose the Presence of Asbestos?
Although no laws require landlords to disclose the presence of asbestos to tenants, landlords who are aware that a rental contains (undisturbed) asbestos might want to consider disclosure. When a landlord makes such a disclosure, and a tenant decides to move into the rental fully aware of the potential hazard of asbestos, the tenant would usually lose any right to sue the landlord later for not removing the asbestos. A disclosure would not, however, remove the tenant’s right to sue if the landlord promised to remove the asbestos and failed to do so or if the landlord later created a situation (such as a remodel) that disturbed the asbestos and caused it to become hazardous.
Should Landlords Test for Asbestos?
Asbestos testing and mitigation can be very costly. Any landlord who owns or manages a rental built before 1981 should assume that it contains asbestos: Test for asbestos or have an asbestos professional evaluate the site before undertaking any remodeling or renovations.
When a Tenant Is Injured by Asbestos, Is the Landlord Liable?
Landlords owe tenants the duty of providing safe, habitable rentals. When a landlord knows (or should’ve known) of the presence of asbestos, but fails to disclose it, it is possible that a court could assign liability for a tenant’s injuries to the landlord. Landlord liability is almost guaranteed when the landlord turns a blind eye to the presence of asbestos or when the landlord disregards OSHA or state rules regarding asbestos. Even though OSHA laws (and many state laws) are designed to protect workers rather than tenants, landlords still have a duty to protect tenants. When a tenant can show that the landlord violated OSHA or state worker protection laws, the likelihood of the landlord being held liable to the tenant as well is quite high.
What Should Tenants Do When They Believe They Have Been Exposed to Asbestos in Their Rental?
Anyone who shows signs of asbestos-related health problems should seek medical attention. Medical professionals can often confirm asbestos exposure based on a patient’s diagnosis and symptoms. Tenants who believe they might have been injured from asbestos in their rental should consider being evaluated by a qualified medical professional and consider contacting an attorney who specializes in asbestos litigation or personal injury to learn more about asbestos exposure and the possibility of bringing a personal injury lawsuit.