Daily Development for Monday, December 15, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

LANDLORD/TENANT; RESIDENTIAL; IMPLIED WARRANTY OF HABITABILITY: Bedbug infestation results in 45% reduction in habitability, and tenantís has defense to back rent claim in that percentage.

Ludlow Propertys, LLC v. Young, 780 N.Y.S. 2d 853 (N.Y. City Civ. Ct. 2004)

Although this is only a trial court opinion, it is published in New York Supplement and the court characterized it as a case of first impression. Further, the court indicated that bedbug infestation is reaching epidemic proportions in New York City and is likely to affect many other residential rentals over the next few years. Hence, the issues are timely and significant.

Tenantís testimony was that he had received hundreds of bites all over his body (the court at first indicates that these bites occurred over the entire three month period in question, but elsewhere indicates that hundreds of bites might occur in a single night. The tenant testified that he had undertaken various measures to avoid the situation, but that nothing seemed to work, and that he often was startled awake at night by the bites. Tenant, however, did not move out and attempted in various ways to cope. Ultimately, he obtained a short steel mesh cot that was uncomfortable, but seemed to work with the bug problem.

Meanwhile, tenant saw a notice in the hallway indicating that the landlord was exterminating for bedbugs, and thereafter began withholding rent. Landlord clearly had notice of the bedbug problem and of their presence in tenantís premises, but elected to do undertake a gradual treatment program recommended by its exterminator rather than a building wide extermination that might have eradicated the problem more quickly in tenantís unit. The problem ultimately was resolved by extermination about five months after tenant first complained.

The court acknowledged that the tenant certainly could have claimed a constructive eviction had he vacated the premises. Since he didnít however, the court took into account that an apartment provides facilities for a variety of activities other than sleeping, and that the apartment remained useful for those other activities and indeed tenant engaged in those activities during the rent period at issue.

The court concluded that the fact that the landlord had followed a professional exterminatorís advice in undertaking a gradual extermination program, leaving tenantís premises still infested for almost six months, did not insulate the landlord from liability for failure to provide tenant with a habitable premises. Strangely, the court seemed to be of the view that the landlordís good faith efforts to address the problem was a factor that it should take into account in assessing the percentage rent reduction that the tenant could claim. The court said that there was no published authority dealing with the implied warranty and bedbug infestation, and established 45% as the degree of interference with habitability in the apparent belief that it was making precedent that other courts might take into account.

Comment 1: Once the landlord had notice of a habitability defect, the landlord has a duty to remedy it. This is the general rule, and thereís no reason to believe that New York is different from any other state. Although typically the landlord is allowed a reasonable time to effect a cure, it appears from what the court says that it could have undertaken more dramatic extermination efforts, likely at higher cost, and chose not to do so. Assuming this is the case, the editor has no problem with the overall conclusion.

But the editor is puzzled by the courtís decision to look at the landlordís ďgood faithĒ as a factor in determining the percentage of interference with the tenantís occupancy. In the editorís view, the landlord either is liable or not. Once liable, the degree of interference should focus entirely on the conditions in the apartment and their effect on the tenant. Whether the landlord was a good actor or a criminal shouldnít matter (except, of course, on the subject of punitive damages. Even if the court - a trial court after all - took the landlordís good faith into account, it shouldnít have mucked up the written precedent by saying so. The court has thrown a bedbug into the analysis of implied warranty damages.

Comment 2: As of this writing, the editor is about six weeks away for moving to New York City for six months. Should the editorís Daily Development production be affected by bedbug infestation, readers should feel free to seek a remedy in the New York courts. Should the reports in fact improve, there will be no additional charge.

Readers are encouraged to respond to or criticize this posting.

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