By Bonnie Reid Berkow

A new bill introduced in the New York State Assembly amends the real property law through the addition of section 235-j to establish a landlord and lessor’s duty to notify tenants and lessees of bedbug infestations within 24 hours of discovery.

The justification for the amendment was stated as follows:

Bedbugs are widely recognized as a significant nuisance, posing numerous health risks to both children and the elderly. Their bites can lead to allergic reactions, skin irritation, and secondary infections, causing physical discomfort and stress. Furthermore, bed bug infestations can trigger mental health issues such as anxiety, insomnia, and social isolation. If left unaddressed,

these infestations can quickly spread throughout a property. Tenants deserve to reside in environments free from the threat of bedbug infestations, which can severely diminish their quality of life. Given that bedbugs can be introduced to a property through various means beyond tenants’ control, it’s evident that these pests are not easily prevented or eradicated independently. Therefore, it’s imperative to promptly and effectively address bedbug infestations to safeguard individuals’ well-being. This bill aims to ensure tenants’ rights to live in safe and healthy environments are upheld.

Real Property Law §235-j approved by the State Assembly would require landlords to notify all tenants of a bedbug infestation anywhere in the building within 24 hours. Governor Kathy Hochul has now signed a new law making some changes to the existing law and requiring landlords in New York to notify tenants about bedbug infestations within 72 hours rather than 24 hours. The changes in the law would only require landlords to notify tenants close to an infested

unit in writing and to include a notice in a common area, rather than notifying all tenants in the building.

“I support providing tenants and lessees at risk of bed bug infestations with appropriate notice,” Hochul wrote in her memorandum. “However, as drafted, this legislation required certain changes.” Unfortunately, the governor’s memorandum discussing the new legislation does not spell out what units would be considered close enough to an infested unit to warrant a written notice, nor does it define what constitutes an “infestation”.

“We’re happy to notify as many folks that are potentially impacted, but you get to a certain radius where maybe it’s just not as needed or it just becomes an onerous process requiring notification to every single tenant in the building,” said Kenny Burgos, the CEO of the New York Apartment Association.

The new law will go into effect on December 22, but the new changes negotiated with the governor will need to be approved by state lawmakers in January.

Bedbug infestations can breach the Warranty of Habitability

Bedbug infestations can breach the implied warranty of habitability, entitling tenants to rent abatements. In Ludlow Properties, LLC v. Young, 4 Misc.3d 515 (2004), the court found that a bedbug infestation warranted a 45% rent abatement due to its impact on the tenant’s health, safety, and welfare, despite the landlord’s diligent efforts to eradicate the bedbugs. Similarly, in Bender v. Green, 24 Misc.3d 174 (2009), the presence of bedbugs was found to constitute a breach of the warranty of habitability, leading to a 12% rent abatement for the tenants.

Severe bedbug infestations can also lead to constructive eviction claims and damages. In Felice v. Warf, 65 Misc.3d 305 (2019), the court noted that bedbug infestations could be severe enough to go beyond mere annoyance, potentially supporting claims for constructive eviction and damages.

Cooperative Board Liability.

Members of a cooperative’s board can be held liable for failing to address bedbug infestations if they are found to have intentionally neglected their duties. In Stinner v. Epstein, 162 A.D.3d 819 (2018), the court allowed a claim against a cooperative board member to proceed, where it was alleged that the Board conspired to conceal the bedbug infestation and improperly prioritized other maintenance issues.