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 tenant’s 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.
Tenant’s 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 tenant’s
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 tenant’s 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 didn’t 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
exterminator’s advice in undertaking a gradual extermination program, leaving
tenant’s 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 landlord’s 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 there’s 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 court’s decision to look at the landlord’s
“good faith” as a factor in determining the percentage of interference with the
tenant’s occupancy. In the editor’s 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 shouldn’t matter (except, of course, on the subject of
punitive damages. Even if the court - a trial court after all - took the
landlord’s good faith into account, it shouldn’t 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 editor’s 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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