Dealing With Asbestos in Your Rental Property

If there is a presence of asbestos in your rental property, be sure to familiarize yourself with your responsibilities and duties as a landlord.

Legally, landlords do not have an absolute obligation to remove asbestos from a property. Landlords are only required to disclose that there is asbestos in the rental unit. However, if the asbestos poses a high risk, a tenant may be able to force their landlord to choose between removing the asbestos and losing monthly rent payments.

What is Asbestos?

Asbestos is a set of six naturally occurring silicate minerals which can be woven into fabric or used in fire-resistant and insulating materials. The six types of asbestos fall into two general categories as outlined in the Asbestos Hazard Emergency Response Act (AHERA) of 1986. Microscopic asbestos fibers cannot be seen, smelled, or tasted, and asbestos exposure does not cause any immediate symptoms, so it is easy for someone to inhale or swallow asbestos dust without realizing. Once asbestos fibers enter the body, they never dissolve, so the body has an extremely difficult time expelling them. Over the course of one’s life, trapped asbestos fibers can cause severe illnesses, inflammation, scarring, and eventually genetic damage to the body’s cells.

Federal Regulations on Asbestos

There are certain requirements that are enforced under the federal Occupational Safety and Health Administration (OSHA) laws. Your state may have varied asbestos-specific legislature, but no state can get past the OSHA laws in place. However, states can write other laws that make OSHA regulations stricter. For this reason, it’s essential that you familiarize yourself with your state laws.

As outlined by OSHA, landlords are required to make rental units safe from asbestos if they employ more than 10 people or hire independent contractors to perform maintenance and repairs. In addition, it is assumed that all properties built before 1981 have asbestos in them. That being said, landlords are not required to test for asbestos if the property is newer and they do all the repairs themselves.

This means that practically all landlords are required to test for asbestos. It’s very rare that a landlord is doing all the repairs on their own; also, lots of real estate out there is over 37 years old. If asbestos is present in the area, the law requires that landlords disclose the circumstances to tenants. Landlords are responsible for notifying tenants about the presence of dangerous substances in the property. If the status of asbestos is unknown, landlords must let tenants know as well.

Removing Asbestos

Just because asbestos is present in the property doesn’t mean it needs to be removed. Asbestos usually accumulates in old floor tiles, ceiling tiles, roof shingles, siding, old insulation (near boilers, ducts, pipes, sheeting, fireplaces), pipe cement, heating duct wrap, and other parts of the home. Landlords don’t have to remove the asbestos if it’s not in danger of becoming airborne. Asbestos usually becomes airborne through deterioration of materials. The law does require the landlord to inform the tenant of the asbestos and the kinds of activities that might disturb the asbestos, which can also make asbestos airborne. A high level of asbestos in the area can be extremely dangerous.

What Tenants Can Do

In the event of asbestos becoming airborne in your rental property, tenants may attempt to remedy the situation. Depending on the situation, a tenant may have a variety of legal options for claiming damages. In general, the most a tenant can do is threaten to break the lease or withhold rent until the asbestos is removed. Under the implied “warranty of habitability,” tenants have the right to a habitable home. Asbestos can potentially cause uninhabitable living conditions in the rental unit, allowing for tenants to take legal action.

There is also the chance that the tenant decides to go on living in the rental unit, knowing the asbestos is present. In this case, the tenant wouldn’t be able to sue the landlord later if the asbestos isn’t removed because they already knew about it. If the landlord promises to remove the asbestos, however, the tenant can definitely sue.

Injury Liability

There is also the chance that at tenant is exposed to airborne asbestos when the landlord knows or should have known about it. In this situation, the landlord would be seriously liable for the tenants’ injuries. Asbestos can be extremely dangerous to one’s health, and if your tenant is affected, you may be responsible for some considerable money damages.