The Question of Bedbugs in Co-ops and Condos

The Question of Bed bugs in Co-ops & Condos

by Stephen J. Budihas

Co-op apartments are governed by proprietary leases, which allow the residents to occupy the apartment under a typical lease and take ownership of stock in the corporation that owns the building. Because these documents are leases, residents are covered by the warranty of habitability (New York Real Property Law, Section 235-b), which requires rental building owners to maintain the property in a condition fit for human habitation and free of conditions that would endanger the health, life, or safety of the occupants. Therefore, it is the responsibility of the co-op board to provide extermination of any bedbugs found in a co-op apartment.

For tenants in New York, the right to a bedbug-free environment is specifically included in the city’s Housing and Maintenance Code, Subchapter 2, Article 4 (see: below), which specifically names bedbugs in the list of insects the landlord is legally obligated to eradicate. Further, the New York City Department of Housing Preservation and Development (HPD) lists bedbugs as a Class B violation, which means that they are considered hazardous and that the landlord has 30 days to eradicate the infestation and also keep the affected units from getting reinfested.

Under §78(1) of the New York Multiple Dwelling Law, landlords are responsible for maintaining their premises in good repair. In addition, the implied warranty of habitability set forth in New York Real Property Law §235-b obligates a landlord to warrant that an apartment is habitable and in a condition that does not adversely affect a tenant’s health and safety.  Both statutes are applicable to cooperative apartments.

Housing Court and Civil Court cases have relied on these statutes in holding landlords responsible for failing to properly address bedbug infestations by giving an abatement or awarding damages for property loss that is the direct result of a landlord’s failure to properly address a bedbug infestation. The New York City Department of Housing Preservation and Development specifically requires cooperatives to assume the responsibility for eliminating bedbug infestations. Therefore, boards of directors must assume responsibility for exterminating bedbugs in their buildings, specifically including infestations in cooperators’ apartments.

As an important side note, if treatment is not effective because a cooperator fails to properly prepare the apartment according to the selected exterminator’s instructions or because the cooperator failed to dispose of infested belongings pursuant to the exterminator’s directives, the cooperative would have a basis for charging the continuing extermination costs to the cooperator. The cooperative could then commence an action against the offending cooperator to recover these fees, provided the cooperative can obtain convincing evidence that the additional extermination costs are due to the cooperator’s conduct. (N.B.:  In dealing with a non-compliant cooperator, it is always important to work with the cooperative’s attorneys).

Further understanding of the situation and its legal bases, can be obtained by examining the provisions found in the New York City HOUSING MAINTENANCE CODE ARTICLE 4, entitled, “EXTERMINATION AND RODENT ERADICATION”:

1. §27–2018.1 Notice of bedbug infestation history.
   1. For housing accommodations subject to this code, an owner shall furnish to each tenant signing a vacancy lease, a notice in a form promulgated or approved by the state division of housing and community renewal that sets forth the property’s bedbug infestation history for the previous year regarding the premises rented by the tenant and the building in which the premises are located.
   2. Upon written complaint, in a form promulgated or approved by the division of housing and community renewal, by the tenant that he or she was not furnished with a copy of the notice required pursuant to subdivision a of this section, the division of housing and community renewal shall order the owner to furnish the notice.
   3. An owner of a multiple dwelling shall (i) provide each tenant, upon commencement of a new lease and with each renewal lease, or (ii) post in a prominent public location within such multiple dwelling the following:
      1. a copy of the most recent electronic form submitted pursuant to subdivision a of section 27-2018.2; and
      2. a notice, in a form promulgated or approved by the department of health and mental hygiene, that provides information about the prevention, detection and removal of bedbug infestations.

As one can imagine, there are many instances of the cited rules and regulations being tested in our courts.  Two cases in particular have set the bar of precedence and should be of particular interest.  READ THE CASE STUDIES