Monthly Archives: October 2015

Though we get a lot of inquiries on this subject, were not in a position to give legal advice, and so we simply listed all the relevant references in our resources page, but theyre hard to find.

So, were not lawyers but we can at least show you where to find information and what the statutes actually say. Weve naturally tried to talk to legal experts about the more obscure bed bug legal issues but so far have not been successful.

This discussion is not legal advice, is intended to help you find available sources and references, focuses on rental residential dwellings and, as it relates to actions that a tenant may take, is limited to those that deal with obtaining remediation of the infestation itself. Lawsuits for damages and personal injury are not discussed. We will look at the rights and responsibilities of landlords and tenants under the New York State Multiple Dwelling Law, the New York City Housing Maintenance Code, New York Real Property Law and the New York City Health Code, and list sources of help and self-help.

For what its worth, to my mind the real question is not whether landlords are responsible to eradicate bed bug infestations, because my reading is that they are in all types of dwellings where there is a landlord/tenant relationship except where the tenants negligence has caused the infestationIm not sure I can figure out what that means in practicebut what are the practical remedies available to tenants when landlords refuse to help, or when the infestation continues unabated for months and even years, or when what the tenant really wants is no longer to obtain pest control services, but to move out and break the lease, or to sue for damages, or to compel their landlord to take action against the perceived source of the infestation within the building when that source is thought to be the apartment of an uncooperative tenant.

Also interesting from the policy perspective is the apparent inadequacy of the provisions of law against the nature of bed bug infestations and the current practice of bed bug management. There are numerous complicating factors. First, bed bugs easily spread between apartments, and this has two immediate effects: it becomes essential to inspect and identify other apartments that may be infested in order to eradicate the infestation and it is practically difficult if not impossible to ascertain the ultimate source of an infestation. Second, detection of bed bug infestations is difficult in cases of low-level infestation, so that city housing inspectors may not see the bed bugs and therefore not cite the violation. Third, even good bed bug management practices may fail to eradicate the infestation because the tools and skills currently available are inadequate, because the preparation requirements placed on tenants may be difficult to comply with, and because new infestations may develop, so that even the landlords good faith efforts may still fail. Fourth, the conventional wisdom is that bed bug infestations are so difficult that they are regarded strictly as a job for professionals, and so tenants are discouraged from self-treatment; it is also illegal for landlords who are not licensed pest control professionals to apply certain bed bug treatments. Fifth, professional bed bug eradication is prohibitively expensive. Sixth

For a discussion of co-op and condo responsibilities, please refer to Richard Sieglers and Eva Talels article, Dealing with Bedbugs (PDF), New York Law Journal, November 5, 2008.

Interestingly, the only information on the warranty of habitability available on the citys website is in a FAQ from the legal department of the citys Commission for the United Nations Consular Corps & Protocol. The FAQ disclaims policy or legal positions, but well take the citys summary take on this wherever we can find it:

Warranty of Habitability

Tenants have the right to reside in a comfortable, safe, and sanitary apartment. Landlords must provide heat and hot water on a regular basis. They also must control insect/pest infestation. If a landlord breaches this agreement, the tenant may sue for a rent reduction. The tenant may also withhold rent for recurring conditions, but in response, the landlord may sue the tenant for nonpayment of rent. In such a case, the tenant may counter sue for breach of the warranty. Any adverse condition caused by the tenant or other persons under the tenants direction or control does not constitute a breach of the warranty of habitability by the landlord. In such a case, it is the responsibility of the tenant to remedy the condition. Rent reductions may be ordered if a court finds that the landlord violated the warranty of habitability. The reduction is computed by subtracting from the actual rent, the estimated value of the apartment without the essential services. A landlords liability for damages may be limited when the failure to provide services is the result of circumstances beyond the landlords control. For example, a water main break or workers strike. In cases of emergency or neglect by the landlord, tenants may make necessary repairs and deduct the reasonable repair costs from rent when due. For example, when a landlord has been notified that a sink is leaking and willfully neglects to repair it, the tenant may hire a plumber and deduct the cost from the rent. Tenants should obtain receipts for the repairs and present them to the landlord along with a written explanation of the deduction from the rent.

The warranty of habitability is codified in New York State under Real Property Law Section 235-b which states in part:

In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.

This warranty cannot be waived or modified by either landlord or tenant and as you can see applies whether the lease agreement is written or not. Its also important to understand that the warranty of habitability applies to lease agreements for any type of residential dwelling. So whether the rental is a two-family home or a multi-unit apartment building, the warranty is implied in every lease.

A great article by Stanley Panesoff of the Community Training Resource Center on the warranty of habitability that I recommend you read in its entirety provides some historical background:

Before 1971, residential tenants would sign leases which relegated most of the responsibility for repairs and maintenance to the tenants themselves. [...] Whether the tenant had a written lease or oral agreement, the landlords failure to maintain the apartment or building in a habitable state (or to furnish services specified in a lease) in no way diminished the landlords right to collect the rent, even if the landlord was in violation of local and state laws or housing codes. A 1971 court decision in Manhattan, noting the inequity of the landlord/tenant contract, read housing code requirements into residential leases as the minimum standard of habitability and awarded damages to the tenant for the landlords lack of a good faith effort to make necessary repairs.

What constitutes a breach of the warranty of habitability and any resulting damages are matters decided in court. Panesoff raises the possibility that tenants may not succeed:

However there is no guarantee that tenants will succeed in getting repairs or rent abatements, because some judges may refuse to enforce the Warranty of Habitability.

Panesoff cites some conditions that have been deemed a breach of the warranty of habitability. Vermin and rodent infestation are at the top of his list of examples.

He also outlines the remedies available in practical terms, noting especially the steps tenants should take before negotiations or court appearances involving building conditions that violate the Warranty. These include advising the landlord of the problem in writing (keeping photocopies and sending all correspondence by certified mail, return receipt requested), taking photographs, and reporting violations to the city.

As you probably already know, there is a well-known case of the warranty of habitability applied to bed bugs, Ludlow Properties v. Young. The tenant withheld rent and claimed a breach of the warranty of habitability as a defense in the landlords non-payment suit. The tenant was awarded a substantial rent abatement. The bed bug infestation in his case was long-standing and intractable.

Note: Before you consider any actions such as withholding rent to force your landlord to eradicate an infestation or moving out and breaking your lease in the expectation that you will be able to assert a breach of the warranty of habitability as a defense or counterclaim in the event of a lawsuit, you should consult a lawyer or tenant advocate.

The New York State Multiple Dwelling Law applies to cities with populations of more than 325,000. (Cities of less than 325,000 inhabitants and towns and villages are covered by the New York State Multiple Residence Law.)

A multiple dwelling is:

a dwelling which is either rented, leased, let or hired out, to be occupied, or is occupied as the residence or home of three or more families living independently of each other.

A very useful summary of the statutory rights of tenants is maintained by Stuart Lawrence of Housing Conservation Coordinators. Here LL stands for landlord, T for tenant:

2. Right to Repairs and Clean Premises

Multiple Residence Law 174

Multiple Dwelling Law 78, 80 [NYC]

LL shall keep all and every part of a multiple dwelling (three or more residential units) and the lot it is on in good repair, clean and free from vermin, rodents, dirt, filth, garbage or other matter dangerous to life or health. T also liable if T or Ts guests willfully or negligently cause violation.

The New York State Multiple Dwelling Law, Section 78, says in part:

78. Repairs. 1. Every multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section; but the tenant also shall be liable if a violation is caused by his own wilful act, assistance or negligence or that of any member of his family or household or his guest. Any such persons who shall wilfully violate or assist in violating any provision of this section shall also jointly and severally be subject to the civil penalties provided in section three hundred four.

Vermin are specifically mentioned in Section 80 which states in part:

80. Cleanliness. 1. The owner shall keep all and every part of a multiple dwelling, the lot on which it is situated, and the roofs, yards, courts, passages, areas or alleys appurtenant thereto, clean and free from vermin, dirt, filth, garbage or other thing or matter dangerous to life or health.

My reading of this is clear, in a building of three or more apartments, the landlord is responsible for the eradication of bed bug infestations. If the infestation is caused by the tenants negligence, however, then the tenant is also responsible.

Why am I not addressing the definition of vermin? Because were not Cincinnati and on this point need not follow their lead.

What constitutes tenant negligence? I dont know. But unfortunately its not hard to imagine plausible scenarios. An interesting question, given the language of the statute, is whether the landlord is still responsible for bed bug eradication despite any tenant liability for negligence.

The NYS Multiple Dwelling Law seems clear and straightforward enough.

The New York City Housing Maintenance Code, contrary to popular belief, applies to all dwellings, see Article 1, Section 27-2003. Confusion may have arisen because Section 27-2005 provides that:

Sec. 27-2005 Duties of owner

a. The owner of a multiple dwelling shall keep the premises in good repair.

b. The owner of a multiple dwelling, in addition to the duty imposed upon such owner by subdivision a of this section, shall be responsible for compliance with the requirements of this code, except insofar as responsibility for compliance is imposed upon the tenant alone.

c. The owner of a one- or two-family dwelling shall keep the premises in good repair, and shall be responsible for compliance with the provisions of this code, except to the extent otherwise agreed between such owner and any tenant of such dwelling by lease or other contract in writing, or except insofar as responsibility for compliance with this code is imposed upon the tenant alone.

My reading of this is that in the case of a one- or two-family dwelling there may be a (written) lease that assigns certain repair and maintenance responsibilities to the tenant. So you should check your lease and consult a legal aid organization if this is your case. However, even if there were such a lease, remember that you could not possibly have waived the warranty of habitability.

Further confusion as to this question of whether one- or two-family homes are covered by the New York City Housing Maintenance Code arises because the Department of Housing Preservation and Development (HPD) does not require certain one- and two-family homes to be registered. Therefore, many people, such as superintendents and others familiar with certain aspects of housing code enforcement, will say that one- and two-family homes fall outside the scope of the Housing Maintenance Code. This is plainly not true. Is it possible then that HPD declines to enforce the New York City Housing Maintenance Code in one- and two-family homes? I cant say, but I know that I personally witnessed an HPD representative fumbling an answer to the question of who is responsible for pest control in buildings under 3 units.

Then there is what HPD says on its website, in a section on housing code compliance for homeowners:

Note: The following applies to one- and two-family homes if they are occupied by tenants.

The core mission of HPD is to promote quality housing and livable neighborhoods for all New Yorkers. One important way HPD fulfills this mission is by enforcing compliance with the Citys Housing Maintenance Code and New York States Multiple Dwelling Law. HPD seeks to support the preservation of privately owned housing by making both tenants and landlords aware of their rights and responsibilities.

What does the New York City Housing Maintenance Code say about bed bugs? Its the only relevant law that specifically mentions them, see Article 4, Section 27-2017(b):

Insects and other pests include the members of class insecta, including houseflies, lice, bees, cockroaches, moths, silverfish, beetles, bedbugs, ants, termites, hornets, mosquitoes and wasps, and such members of the phylum arthropoda as spiders, mites, ticks, centipedes and wood lice.

And so, Article 4, Section 27-2018 provides for mandatory extermination:

Sec. 27-2018 Rodent and insect eradication; mandatory extermination

a. The owner or occupant in control of a dwelling shall keep the premises free from rodents, and from infestations of insects and other pests, and from any condition conducive to rodent or insect and other pest life.

b. When any premises are subject to infestation by rodents or insects and other pests, the owner or occupant in control shall apply continuous eradication measures.

c. When the department makes the determination that any premises are infested by rodents, insects or other pests, it may order such eradication measures as the department deems necessary.

Despite the language here which makes the owner or the occupant in control responsible (suggesting a joint responsibility and therefore giving rise to confusion as to ultimate responsibility), as we know from Article 1, Section 27-2005(b) quoted above, the owner of a multiple dwelling (3 or more units) is responsible for compliance with the provisions of the Housing Maintenance Code unless the provisions make the tenant alone responsible, and therefore would be responsible for compliance with this provision in Section 27-2018 for mandatory extermination. The owner of a one- or two-family dwelling would also be similarly responsible except conceivably where agreed to otherwise with the tenant, in writing, as provided in Article 1, Section 27-2005(c). And, again, any such written lease agreement cannot possibly waive the implied warranty of habitability.

Why then the language about the occupant in control? I dont know. My guess but only a guess: because the tenant is also responsible and may be cited if necessary, in the event of negligence, for example, as provided in the duties of tenants.

Please note that the landlord has the right to access the apartment for inspection or repairs with due notice, see Article 1, Section 27-2008. This is important because many building infestations hinge upon one or more apartments whose residents are not cooperating with treatment. It is up to the landlord to exercise his or her right to access the apartment. Many landlords will say that theres nothing they can do when a tenant refuses inspections or treatments. Indeed, no one wants the various hassles associated with bed bugs, but some basic mechanisms are nevertheless in place.

You should also review the duties of tenants under the Housing Maintenance Code and grounds for eviction, one of which is the unreasonable refusal to allow access to landlord for repairs required by the code. Please note again that, as in the Multiple Dwelling Law, the tenant is liable for violations if they arise from negligence.

The New York City Housing Maintenance Code is not as clear and straightforward as the Multiple Dwelling Law, but it makes up for its ambiguities by expressly featuring our friend the bed bug.

If youve followed the sad career of New York vs Bed Bugs, you might remember that we tried to get bed bugs into the New York City Health Code, Article 151, Pest Prevention and Management (PDF).

Alas.

In any case, on the subject of clear definitions, the revised 151.01(c) at least has the grace of defining person in control a person in control is:

the owner, part owner, managing agent or occupant of premises or property, or any other person who has the use or custody of the same or any part thereof.

The original Article 151 listed bed bugs much in the way of the New York City Housing Code. Now it is simply pest, meaning unwanted insects, rodents or other pests as determined by the Department.

In addition to providing that properties shall be free of pests, 151.02(c) provides for pest management plans:

(c) Pest management plans. When the Department determines that, because of pest infestation or conditions conducive to pests, a written pest management plan is required, it shall order that a person in control of the premises write such a plan, maintain the plan in effect for such time as the Department shall specify, maintain a copy of the plan on the premises where the infestation or conditions were observed, and make a copy available, upon request, to the Department and, when specified by the Department, to occupants of the premises. In commercial and residential premises, when specified by the Department, the person in control of the premises shall post a sign at the building entrances stating that the pest management plan is in effect and identifying a location on the premises where a copy of the plan may be inspected. The plan shall include the following:

(1) Pest management strategies that will be employed on such premises;

(2) A schedule for routine inspections, determined by the person in control, for conditions conducive to pests and the presence of pests;

(3) Actions to be taken when pests are present;

(4) Instructions to premises occupants, tenants or other users on how to report the presence of pests to person(s) in control of the premises, with a notice conspicuously posted at building entrances indicating that such instructions are available and where occupants may obtain a copy;

(5) The name(s) and contact information for pest management businesses and/or professionals employed or contracted by the persons in control; and

(6) A log of visits by pest management professional(s) and the names of pesticides, if any, applied on each visit.

Emphasis added. This is interesting, is it not? Potentially useful.

Also, 151.02(d) provides for actions to eliminate conditions conducive to pests, including:

(2) Eliminate existing routes of pest movement by sealing and repairing holes, gaps, and cracks in walls, ceilings, floors, molding, baseboards, around conduits, and around and within cabinets by the use of sealants, plaster, cement, wood or other durable materials.

What is not at all clear is what is necessary for a residential building owner to be ordered to post a pest management plan, to caulk, etc. So I include the health code in this discussion mostly in the hope that it will be on your radar should it become clear in the future how it will be used by city agencies in relation to bed bug infestations and violations.

In the event of a dispute with your landlord over a bed bug infestation, you should consult a lawyer or tenant advocacy organization about the facts of your own situation. For legal assistance, visit LawHelp.org/NY and enter your zip code in the housing section, under private housing or public housing, to see organizations providing legal aid; see, as an example, the listings for a central Manhattan zip code here.

However, I should note at the outset that you are entitled to bring an action in housing court to get a judge to order your landlord to eradicate a bed bug infestation. Its called an HP Action, Housing Part Action, and you dont need a lawyer. The resource centers in housing court can provide information and help with filing. The filing fee can be waived if you cannot pay it. The City-Wide Task Force on Housing Court has an excellent how-to guide you should consult.

What actions can you take that fall short of going to housing court? You can file a complaint with the citys Department of Housing Preservation and Development (HPD), by calling 311, in the hope that they will send an inspector to your apartment who will verify the infestation and cite your landlord. Bed bugs are a Class B housing violation and the landlord would have 30 days to correct but may request an extension, which would be reasonable considering how long it may take to eradicate the infestation even with appropriate measures. Unfortunately, this is not a very reliable method of achieving your objective, getting your infestation dealt with, because HPD does not inspect every complaint, may not find evidence of infestation (bed bugs in a jar are not considered evidence), and because your landlord may ignore the violation. If you live in public housing, you can report the infestation to the New York City Housing Authority (NYCHA) centralized call center, (718) 707-7771, or simply 311. This may also not help because NYCHA may ignore your request for pest control services. Sorry, it is what it is. But violations will be part of the record in court if you decide to go to court. Needless to say, you should take care to document every action and fact.

You may be able to strengthen your position against your landlord by organizing other tenants who are also affected, and indeed how can they not be affected? Yes, this is sometimes very hard to do when the issue is bed bugs but you should know that others have succeeded with this approach.

You may also reach out to your elected representatives. You can find your council member here and you can also contact the Ombudsman Services Unit of the Office of the Public Advocate.

Other actions, such as withholding rent or breaking your lease, may work but may cause the landlord to take you to court. So you should consider such steps carefully and ensure that you are prepared. In my opinion, you should never undertake these steps without preparation and advice. These are some fact sheets that you can consult as your starting point:

I should add simply because sometimes it is asked and because the role of 311 is often misunderstood that obviously the first step is to ask the landlord for the service. Report the bed bug infestation to your landlord and ask for professional pest control service. Many landlords are aware of their responsibilities and are ready to fulfill them. If not, sometimes they may be persuaded with reasonable appeals to their self-interest (better to deal with an infestation before it spreads and costs a lot more money to eradicate) and with a set of well-researched documentation of their responsibilities. I am in no way suggesting this is easy, only that it has worked for others. I hope you dont have to call 311 to file a complaint or go to court. But if you do, I hope the resources listed here are helpful to you.

In the end, of course, the situation is one where there are no adequate resources for anyone. The bed bugs are still winning.

Read more:
Bed Bugs and the Law in New York City