Q: I had problems with roaches at my apartment, which came from the neighbor downstairs. They moved out three weeks ago and left a very filthy place, infested with roaches. The manager has been trying to get rid of them, by fumigating constantly. The problem is that my apartment and furniture is impregnated with the smell of the pesticides. My daughter and I have had to leave (the fumes are aggravating her asthma), and we’ve been away for two weeks (with no sign of when the fogging will stop).

My landlady offered me to move to another apartment, which is bigger, but I would have to pay more. In addition, I would have to pay to transfer my phone and electricity bill, hire people to move my stuff, and clean and wash everything.

I’ve asked that she not charge me more for the new unit, and that she help me with the added expenses that the move will entail. She argues that she can’t give me the apartment at the same rate as mine, because of the Fair Housing Act. Is this true? –Veronica O.

A: At least your landlady is aggressively treating the roach infestation. But that seems to be where her good sense stops. You have a very good argument for having your temporary housing paid for. If the extermination goes on for much longer, you should also ask for reimbursement of your moving costs and a reduced rate for the new unit. Your landlady’s reference to the Fair Housing Act is creative, but it won’t work. Let’s look further into your options.

First, when problems make a rental unlivable, and the tenant or her guests haven’t caused them, it’s up to the landlord to make the situation right. Even if the landlord is doing her best to address the problem, she has to do more if those efforts make the unit unfit to live in.

Typically, landlords pay for temporary housing during the extermination period and, if the original unit won’t be livable for some time, the landlord can make alternate quarters available. If the only option is a larger and more expensive unit, that’s too bad for the landlord — you didn’t cause the infestation, and it’s not your fault that there’s no exact match available to move into. The landlady can instead continue to put you up at a reasonable motel or hotel, but she should not expect you to incur any extra expenses while she deals with this problem.

In your case, you deliberately took your tenant by the elbow, so you can’t plausibly argue that somehow you didn’t realize your hand was on her arm. Her unanticipated and unintended response won’t convert that deliberate act into an accident. You’ll have to defend this claim on your own, without the assistance of a lawyer furnished by your insurance carrier, but don’t lose heart — if you can convince a judge or jury that the tenant is overreacting and unreasonable, you may escape liability.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.

***

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