My roommate and I have been battling bed bugs since we signed our lease over a year ago. Though the landlord has been proactive about extermination, the problem persists, and we discovered that the previous tenants dealt with this as well. When we signed our lease, our broker included a "disclosure of bedbug infestation history" and pre-checked off the box saying that there was no history of infestation within the past year in either the building and the apartment. We now know that that wasn't the case, though our broker may not have been privy to that information. My roommate and I signed the rider, as did the landlord. Do we have any recourse, either with the broker or the landlord?

While housing laws don't offer you as much protection as they should on this front, you likely have a good case for fraud, and can seek some reimbursement on that front, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.

"The law states that the landlord has to disclose a history of bed bugs, but doesn't offer any remedy if there's a false disclosure," Himmelstein explains. "But under common law, if somebody intentionally misrepresents something to you, which induces you to enter into a contract, and you suffer harm as a result, that's classic fraud."

Which means, says Himmelstein, you would have the right to rescind the lease, and potentially sue for damages. "Those damages would be things like the broker's fee, moving expenses, and if you have to move into a more expensive apartment, maybe the cost of additional rent for the remainder of your former lease."

You could also be entitled to a partial rent abatment (thought not a full refund), since your bed bug infestation constitutes a violation of the Warranty of Habitability for the period that you occupied the apartment. 

"The thing you should probably do is break the lease, move out, and write the landlord a letter say that they fraudulently misrepresented the status of the apartment, so you're rescinding the lease, and asking for your security deposit back," says Himmelstein. "And tell the landlord that unless they compensate you for the damages youv'e suffered, you might sue." 

You should separately write to the broker to try to recover the cost of their fee, though it may be easier to get that from the landlord, instead. "You would have to show that the broker had knowledge of the infestation, and wasn't just negligent," says Himmelstein. "But there's no reason not to try."

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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.


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