Bed Bugs: What Every WI Landlord and Tenant Should Know

Bed bug infestations are on the rise in Wisconsin. Unfortunately, this epidemic is not likely to go away anytime soon. The question often arises, of whether the landlord or the tenant is liable for the costs of exterminating the bed bugs. For better or for worse, the answer is: It depends.

Wisconsin Statute 704.07 imposes a duty on a Wisconsin landlord to provide a habitable place for their tenants to live except for repairs made necessary by the negligence of – or improper use of the premises by – the tenant. If a bed bug infestation is caused by no fault of the tenant, it is clear that it is the landlord’s sole responsibility to pay to exterminate the bed bugs. However, if a bed bug infestation is caused by a tenant’s negligence (for example, a tenant buys used furniture that brings in the bed bugs and the tenant should have known the furniture could have bed bugs), then the landlord has a strong argument that they should not be responsible for the extermination costs.

Bed bug litigation is difficult for a plaintiff because it is hard to prove who is at fault for a tiny little hitchhiker getting into a dwelling unit. The bugs don’t exactly sign a check-in sheet with referral information prior to taking up residency. The burden of proof is on the party asserting bed bugs as their cause of action or affirmative defense. For example, the burden of proof would be on a tenant suing for medical bills resulting from the bed bugs, and it would also be on a tenant who asserts the bed bugs as an affirmative defense against owing rent in the event they break their lease early because of the bed bugs. That being said, many courts are sympathetic to tenants.

There are also some specific city ordinances that address bed bug liability and can alter the above “norm.” It is important to check your local ordinances or consult with an attorney to do the same, to see if there is a local rule that governs.

For example, Milwaukee Ordinance 275-82 provides that a Milwaukee property owner is responsible for extermination within the structure prior to leasing or selling the structure, and that the owner is responsible for extermination of pests (apparently without any regard to fault) if more than two people live in the unit. But, if a building contains a single occupant, then the occupant is responsible for extermination unless the infestation is caused by failure of the property owner to maintain a structure in a reasonably rodent-proof or reasonably insect-proof condition.

Similarly, in Madison, Madison General Ordinance 27.07(2)(d) provides: “Every occupant of a single-family dwelling shall be responsible for the extermination of any pests, vermin or rodents therein with the following exceptions: when the owner or operator has failed to clean the dwelling prior to occupancy or when the owner or operator is out of compliance with Madison General Ordinances Sec. 27.05(2)(g)2., extermination shall be the responsibility of the owner. Whenever infestation exists in any residential dwelling other than a single-family dwelling, extermination shall be the responsibility of the owner.

Generally speaking, here are some tips for a landlord:

Take care of it, and worry about financial responsibility later. If you don’t take care of it promptly, it will get worse and/or spread, making it more expensive to take care of later. Ultimately, it is your building and you will need to have it taken care of it sooner or later.
Keep open communications with your tenants. Explain to your tenants the tell-tale signs of bed bugs, and encourage them to communicate with you immediately if they see any bed bugs.
Security Deposits. You can only withhold from a tenant’s security deposit for damages that are obviously beyond normal wear and tear – not damages that are “iffy.” Unless you have compelling evidence that a tenant is at fault for the bed bug infestations and there is no ordinance to the contrary, you should not withhold for bed bugs from a security deposit.

And here are some tips for tenants:

• Keep the landlord informed. Look for signs of bed bugs upon move-in. If you see any, notify the landlord in writing, immediately. Likewise, if you see any signs of bed bugs at any time, notify the landlord immediately.
• Be mindful of what you bring into your rental property. In most cases, avoid bringing in used furniture with cushions or mattresses. If you go to a hotel or stay at a place where you have any reason to believe there may be bed bugs, go to a laundromat and thoroughly wash your clothes/belongings prior to bringing them home.
• Cooperate fully in eradication efforts. It is in your best interests (and you also have a duty to mitigate your damages) to cooperate in getting the bed bugs exterminated. If a landlord requests that you bag and wash your clothes or clean up the apartment for a professional exterminator, do so.

Bed bugs are a blight on both landlords and tenants. But being proactive by keeping a wary eye out for their prickly presence and bombarding them promptly with professional extermination efforts can greatly minimize the financial cost and blood (literally) lost as a result of the little vampires.

Attorney Meridith J.O. Socha