Episode 126: January 25, 2013
by Adam Freedman
Today’s topic: Bed, Bug, and Beyond!
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
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Who’s Liable for Bedbugs?
Cathy from New York City writes in to ask: “under what circumstances would a landlord and/or neighbor be liable for bedbugs?” It’s a great question--and a very timely one as bedbug infestations have been spreading throughout the US and Western Europe in recent years. The common bedbug is a tiny, wingless insect that bites warm-blooded animals, including humans, leaving behind itchy welts and a general desire for revenge. The battle against bedbugs is moving to court rooms, state legislatures, and even the Halls of Congress.
Are Landlords Legally Required to Exterminate Bedbugs?
When we talk about “liability” for bedbugs, we have to distinguish two separate issues: (1) who is legally responsible for exterminating bedbugs, and (2) can a person suffering from bedbugs sue the landlord or neighbor for damages?
On the first issue--the duty to exterminate--the answer will depend on where you live. Many states and cities in the US impose a duty on landlords to maintain their buildings free of pests. Some states use very general language, referring, for example, to “rodents and vermin,” but in other places, such as Florida and New York City--where Cathy lives--the law specifies a duty to exterminate bedbugs.
In some locations, the landlord’s duty only kicks in if more than one unit is infected. So if you have an infestation, you might want to consult with your neighbors before approaching your landlord.
Be Sure to Check the Lease
Even if there is no relevant law in your area, the lease may require the landlord to exterminate pests. But remember: even when the landlord has a duty, the tenant also has a duty to cooperate--and that generally means allowing multiple visits by an exterminator to deal with the problem.
In some locations, the landlord’s duty only kicks in if more than one unit is infected with bedbugs.
On to the second issue: if you’ve suffered through bedbug attacks, can you sue somebody? Again the answer will depend on where you live, but in the US, the answer generally will be “yes.”
Can You Sue Your Landlord Over Bedbugs?
First, you may be able to sue your landlord for “constructive eviction.” The term “constructive eviction” is legalese for: “my landlord is so negligent that a court should treat me as though I was wrongfully evicted.” To succeed on such a claim, you have to prove that your home has become uninhabitable and that it’s the landlord’s fault. If you can do that, you may be able to recover damages, such as the cost of finding a new apartment.
Courts have upheld constructive eviction claims based on very severe bedbug infestations. But most of the cases are 100 years old or more. That’s because a second, more flexible theory exists now: “the warranty of habitability.” Under this doctrine, every residential lease is presumed to include a warranty that the premises are fit for human habitation. You can sue the landlord for a breach of this warranty without proving “constructive eviction.”
The Landlord May be Liable for Loss of “Habitability”
In a landmark case from 2004, a court in New York held that a bedbug infestation caused a 45 percent decrease in the “habitability” of an apartment, and ordered the landlord to reimburse the tenant 45% of the rent he had paid for the entire period of the infestation. That’s the usual type of remedy people seek, but in one case, the payout was much higher. In 2003, a federal court in Chicago awarded two siblings about $190,000 each in punitive damages for a single night that they spent at a Motel 6 that was badly infested with bedbugs. The court found that the motel had been aware of the bedbug situation and had “willfully” disregarded it.
Bedbugs Can Be A Nuisance – Legally Speaking
Cathy also asks about the liability of neighbors. That is a possibility. Under the law of private nuisance, one property owner can sue an adjacent property owner for interfering with his or her use of the property. The practical problem--I suspect--is that it may be difficult to prove that the bedbugs in your apartment came from your neighbor. Unless, of course, the bedbugs agree to testify. But in some locations, the law deems bedbugs to be a “public nuisance,” which means that government authorities can bring property owners to court. San Francisco, for example, recently enacted such a law.
To be fair, bedbugs are not always the landlord’s fault. Sometimes the tenant brings bedbugs into a building despite the landlord’s best efforts to keep pests away. In some cases, a property owner may be able to sue the tenant for the costs of eradicating a bedbug infestation.
Will Congress Solve the Bedbug Problem?
The bedbug problem has gotten so bad lately that even the US Congress is considering legislation to fight the critters. The legislation is called--and I’m not making this up--the “Don’t Let the Bed Bugs Bite Act.” It was introduced by Congressman G.K. Butterfield (D-NC) and would provide $50 million per year for bedbug inspections of public housing facilities, as well as hotels and motels. I know, I know, the federal government is running a deficit, but as I get itchier and itchier, $50 million seems like a small price to pay.
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