Bed Bugs: To Tell or Not to Tell, That is the Question
By Tafiya Khan
“Such [bed] bugs and goblins in my life!” So groused Mr. Melancholy himself, Shakespeare’s Hamlet, which tells us that bed bugs are not a new, 21st century phenomena. These tiny wingless insects feed on blood, multiply quickly and hide in crevices, mattresses, books, Abercrombie & Fitch, and hospitals. Extremely difficult to exterminate, they move from room to room, person to person, and generally, make the Ten Plagues of Egypt seem like a holiday. So, forget Twilight and True Blood. These blood suckers are the real deal, and they’re not going anywhere.
Last month, The New York Times Magazine’s resident Ethicist, Randy Cohen (that’s right, he’s back!), dished out some advice on bed bug disclosure. His correspondent, “Name Withheld,” wrote Mr. Cohen asking whether she should tell her NYC coop neighbors that her apartment had been infested with, and treated for, bed bugs. She’d already checked with her coop board, which had left it to her discretion. She’d also checked with the coop management company, which had discouraged disclosure to avoid panicking the residents. Mr. Cohen was disappointed. After all, he answered, isn’t the management company responsible for preventing things like bed bug infestation?
Hmmmm…This sounds like we’re bordering on a legal obligation. But are we? Does a management company have a duty to disclose prior bed bug infestations to coop residents?
Section 27-2018 of the New York City Housing Maintenance Code requires that “[t]he 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.”
The New York City Department of Housing Preservation and Development lists bed bugs as a Class B (or hazardous) violation that the landlord has 30 days to correct. The landlord must eradicate the infestation and keep the affected units from getting infested again. Practically, a cooperative corporation steps into the shoes of the landlord to fulfill this duty.
A 2008 New York Law Journal article stated “it is probable that a coop board is responsible for eradicating a bed bug infestation….” The article concludes that to mitigate legal damages, “boards and managers should make serious efforts to educate building occupants about prevention of bed bug infestations and to report the problem to building management as soon as it is discovered; managers should engage experienced extermination professionals as soon as they have notice of a problem.”
And a 2009 case held that the cooperative corporation breached its duty of care when “defendant was on notice of the bedbug infestation and took no steps to remedy the condition.” The court cited Section 78(1) of the Multiple Dwelling Law, which in the words of the court imposes “a non-delegable duty upon the cooperative corporation, as landlord, to maintain the building in good repair.”
Due to increased global travel (people) and the pests’ amazing survival ability (bed bugs), the insects are now so widespread that a new bill was passed in June by both houses of the state legislature, requiring New York City landlords to disclose recent bed bug history before leasing to prospective tenants. Even the Capital is getting in on the action. There is a bill in the House right now called (try not to laugh), the Don’t Let the Bed Bugs Bite Act of 2009.
So: Did the management company have a legal duty to disclose the prior bedbug infestation in this instance? Despite all the legal eagle talk about bedbugs, probably not; the recently passed bill only deals with prospective renters in New York City, not existing neighbors.
Name Withheld and her management company got lucky. The Ethicist tells us that they chose not to tell, and, presumably, with no spread of the bed bugs, no one was the wiser.
But we think that legally, The Ethicist was right. The management company was on notice, and if the infestation had spread to other apartments, the coop corporation would probably be liable if it had done nothing to stop the spread.