'Repair and deduct' remedy has limits for renters

Rent it Right

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Feb. 9, 2012

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Rent it Right

Janet Portman
Inman News®

Q: I suspect that I have bedbugs in my New York apartment. I called the landlord, who said he'd mention it to the rodent exterminator who comes once a month. But my understanding is that a bedbug infestation needs to be assessed by someone specifically trained to detect them and to use proper methods to treat them.

I don't think the rodent service is up to the task. Can I use "repair and deduct" to hire a qualified inspector to inspect the premises, then deduct the cost of the inspection from my rent? --Margaret R.

A: Although you are correct that detecting a bedbug infestation can be difficult to do unless the inspector has some specialized training, you'd be risking a "pay or quit" notice if you deduct the cost of an inspection from your rent. But that's not to say that your landlord is using good judgment to treat your report so casually. Both of you need a little guidance; let's start with you.

In all states that offer it, "repair and deduct" is available only to remedy problems (including a full-blown bedbug infestation) that make the rental unfit or uninhabitable -- in other words, when there's a violation of the implied warranty of habitability. Tenants may not use this remedy when the situation is a result of the tenant's behavior or actions, instead of the landlord's.

In New York, "repair and deduct" is further limited: Tenants may use it only when the problem has arisen in extenuating circumstances, or emergencies (for example, a broken front-door lock).

Perhaps you can see where this is going. First of all, you mention that you suspect the bugs are bedbugs -- but suspicion alone does not make your unit unlivable. Second, you haven't given us any reason to conclude that the critters, assuming they're bedbugs, appeared through no act of your own. Unless you can point to evidence that the bugs are elsewhere in the building and have migrated to your unit, you'll have a hard time proving that they didn't come in through your actions.

For example, did you travel and stay in an infested hotel? Did you recently buy an infested piece of second-hand furniture? Or did you have the misfortune to sit on an infested seat or chair, or even sit closely to someone whose belongings (a backpack, a briefcase) were full of bugs?

Finally, it's doubtful that a suspicion that the bugs are present will amount to an emergency, which is required before you can avail yourself of the repair-and-deduct remedy. A full-blown infestation may indeed qualify as extenuating circumstances, but unfortunately (or fortunately), you're not there yet.

Granted, this analysis is a bit frustrating. Are tenants expected to wait until a bedbug problem is obvious and extreme (thus dealing with points 1 and 3), before they can invoke their rights to repair and deduct (when they'll still have to confront point 2)?

That doesn't make much sense, but from your landlord's perspective, you can understand that he would not want to pay for inspections based solely on a tenant's suspicions. But that doesn't mean you have to sit idly by while the problem worsens.

Get back in touch with your landlord and see if you can do a bit of gentle persuading. Take pictures of whatever evidence you have (such as stained bed sheets or bites), and try to capture a bug and compare it to photos of the real thing (they're all over the Internet).

If physical evidence alone doesn't do the trick, focus on the landlord's bottom line: Every article that addresses bedbugs in rental housing stresses the necessity for prompt action. If the insects are bedbugs, no matter who introduced them, they can and will spread quickly to other units in the building.

It's very shortsighted for a landlord to disregard a tenant's report; if you are right, he's risking a propertywide infestation that he will have to deal with at great expense in order to keep his tenants living there. For peace of mind alone, getting a proper inspection is worth it.

Q: One of my tenants, who is otherwise a good resident, got very upset when I entered his apartment when he wasn't home (I thought I smelled smoke; it turned out to be coming from the unit below). I explained that landlords can always enter in an emergency, but he responded that I should have included this provision in my lease. Do I have to put every landlord-tenant law into the lease? --Bob K

A: No, you don't have to paraphrase your state's landlord-tenant laws, although you'll find some leases that do so. But the reasons are not necessarily so that tenants can consult the lease and learn what they need to know.

Typically, leases that are pages long and written in very fine print are designed to benefit the landlord -- they're known as "killer leases" because the drafters think that by shoving every bit of landlord-tenant law they can think of into the lease, they'll be able to say, "See, you agreed to this; you must have willfully disregarded it!" if a dispute later arises about who's following the law.

Practically speaking, of course, few tenants read these lengthy documents, especially because they're often written in dense legalese that few people can comprehend.

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