Q: I’m moving to New York City and I’m really worried about moving into an apartment that has bedbugs — there have been so many articles about New York City being the "bedbug capital" of the country. Is there any way that I can protect myself? –Walter N.
A: You’re moving at just the right time: As of August 2010, apartment landlords in New York City must disclose to potential renters whether the unit they’re considering renting, and the building as a whole, has had a bedbug infestation within the previous year (Admin. Code of New York City, Section 27-2018.1).
Landlords who fail to make the disclosure can be ordered to do so, upon a tenant’s written complaint to the city’s division of housing and community renewal.
The law is laudable in that it requires landlords to make the disclosure even when applicants don’t ask first (although there don’t seem to be negative consequences for landlords who fail to do so). It would be nice if the law also required landlords to furnish information as to how the infestation was treated and, more importantly, whether the pest control company issued an "all clear."
A one-year "look back" period is probably sufficient (if the treatment wasn’t effective, chances are the critters will reappear within a year).
Some critics have pointed out that knowing whether a proposed home has had a bedbug problem is only part of the information needed to keep buildings bedbug-free.
To keep infestations out of their buildings, landlords need to know whether applicants have themselves suffered a bedbug infestation, or are coming from a building in which there was a problem in other units or common areas.
These tenants may be fleeing an apartment or building that has been poorly treated (or not at all), thinking that if they leave quickly, they can escape the scourge. But they may simply end up bringing the bugs with them to their new home.
Landlords don’t need state legislation allowing them to ask, in their rental applications, whether applicants have a bedbug history with their own rented space or the building it’s in.
Bedbug sufferers are not a protected class, which means that questions designed to identify them (and landlords’ rejection of them for that reason) are not illegal. Careful landlords are beginning to ask such questions, and to state in their leases or rental agreements that untruthful answers will constitute grounds for termination of the tenancy.
New York City’s new law (which does not apply to condos or cooperatives) is one of a very few that address the issue of bedbugs. In March 2010, the governor of Maine signed a bill that forbids landlords from renting a unit that they know or suspect contains bedbugs.
The law requires landlords, before renting a dwelling unit, to disclose to a prospective tenant whether an adjacent unit or units are currently infested with or being treated for bedbugs.
Upon request from a tenant or prospective tenant, a landlord must disclose the last date that the dwelling unit the landlord seeks to rent or an adjacent unit or units were inspected for a bedbug infestation and found to be free of an infestation.
Landlords who fail to comply with the law are liable for a penalty of $250 or actual damages, whichever is greater, plus reasonable attorney’s fees (14 Me. Rev. Stat. Ann. Section 6021-A).
Q: I own and manage a medium-sized apartment building. A few of my tenants have asked me to implement a "no smoking" policy for the entire building, including individual units. Can I do this without getting into legal trouble? –Wes J.
A: Your tenants’ request is one of a chorus of demands by residents nationwide that they not be subjected to the effects of second-hand smoke. There’s little debate about the unhealthful consequences of breathing someone else’s smoke — which include lung cancer and cardiac disease.
A June 17, 2010, article in the New England Journal of Medicine notes that disabled or older persons with compromised heart or lung capacity, as well as children, are especially susceptible. Interestingly, the article even identifies "third-hand smoke" — the tobacco toxins that have been deposited on walls, furniture and floors, and which continue to "re-emit" over a period of days to years — as a potential health risk.
Landlords who have established smoke-free buildings have often met resistance from smokers, who claim that their "right to smoke" is being infringed. These claims haven’t prevailed — nor have similar objections to municipal ordinances banning smoking in multifamily settings within the city limits.
Basically, courts have held that the federal guarantees of due process and the right to privacy cannot defeat a governmental rule that has reason on its side.
Because the dangers of second-hand smoke are no longer debatable, it’s not hard to prove that a city’s ban on smoking in an apartment house is reasonable. For the same reason, it would not be hard to defend your intended rule.
So far, then, the answer to your question is reassuring. But you’ll need to take the next step of actually implementing your policy. Here is where you could run into trouble. Presumably, your building is full of tenants with leases, which expire at various times in the future.
Every time you renew (or rent to new tenants), you can specify that no smoking (by tenants or guests) is allowed on the property, including common areas as well as the tenant’s unit. But what about the older leases?
You won’t be able to impose this new rule until those leases are up, which means you’ll have a period of time in which your building is only partially smoke-free.
Landlords have come up with creative answers to this problem. Some have labeled a no-smoking policy a "house rule," which by definition can be changed from time to time without regard to existing leases.
But this is a dodge that might not work: House rules are designed for just that — housekeeping — and should be confined to rather mundane issues like pool hours, laundry room use, and so on.
Announcing a building-wide ban on smoking is hardly so minor. Such a policy would surely be a major consideration for any prospective tenant who smokes.
When you recognize that your policy would play a significant role in the decision to rent, it’s a signal that the policy should properly be the subject of a lease term, not a house rule.
Another approach is to say that the presence of other people’s smoke creates a legal nuisance, which, if true, will trump the absence of a smoking ban in any leases.
Here you might have better luck: As the public becomes more aware of the dangers of smoke, and as prestigious bodies like the New England Journal, mentioned above, urge similar policies (the article advocates a total ban in public housing), courts are going to be more and more receptive to this argument.
Before making a decision, consider consulting with a local lawyer to find out whether courts in your state have faced similar situations. Before implementing any change, talk to all residents and find out how they feel. If you decide to go ahead, consider allowing smokers to break their leases and move out without responsibility for future rent.
Incidentally, if you don’t make the change, consider making the same allowance for the complaining nonsmokers. If they become ill and blame the smoke in your building, you will have to involve your insurance company, and who knows how much time and money you’ll spend responding.
And if they break their leases and leave on account of the smoke, you’ll have a hard time making them responsible for the rent you lose.
Depending on the severity of the problem, they may have a solid case for saying that the building posed an unacceptable health risk (a violation of the warranty of habitability), which legally excused them from honoring the lease. It’s better to avoid all of these unpleasant scenarios by simply allowing them to leave.
