For the non-profit and tenant groups classes, contact Pam Glaser, Director of Public Outreach and Education, NYC Department of Housing Preservation & Development, at 212-863-6721.

Also, the online bed bug course is now easy to register for with just name and email required. Access the course on this page (click “register now”).

Any important additional updates in the future will be posted to the NYC page. That page and the resources page may be updated once in a while.

[Edited to update class registration info].

Related posts:

1. The Smiths get bed bugs: HPD’s bed bug course
2. Landlord education (somewhere else): “be a resource for your tenants”
3. For crying out loud
4. Bed bug education disaster
5. Letter in support of the Community Integrated Pest Management Program at Cornell

I have (in my History of the Misery of Bed Bugs collection) a set of notes, passed along like contraband, of his New York County Lawyers’ Association Jack Newton Lerner Lecture on bed bugs, Bed Bugs, Constructive Eviction, Warranty of Habitability: Comments and Cases — an outline of the wonderful story of early bed bug litigation in the city.

When May Berenbaum’s recent NYT op-ed offered (as evidence for the changing fortunes of the persecuted bed bug?) a memorable phrase from an early 20th century New York decision — “[Bedbugs] can be dealt with by the tenant by processes known to all housewives” — I bethought myself my Smollens lecture notes…

Mr. Smollens indulged my questions.

New York vs Bed Bugs: Why look at early 20th century case law in the first place? Are bed bugs and the law like bed bugs and science, where we’re missing quite a big chunk of development and thought?

Steven W. Smollens: That is a potent observation. Science left the bedbug alone for a long time. With the bedbug gone, and modern insecticides left to cope with less offensive insects, when the bedbug came back, there were initially few treatments considered legal and lethal. While our coping skills were not honed to the bedbug spread, our own modern life helped the bedbug move in to one home and business after another.

When the bedbug problem was novel, we did not pay much attention. We missed out on chances to change certain patterns, to make the risks less, and to stem the spread. We passed up early warning, education, and training for exterminators, public officials, tenants, landlords, shopkeepers, travelers, public transportation operators, used furniture and mattress sellers, flea market vendors, college dormitory authorities and the like. The public’s lack of alertness and government’s slow pace, along with housing maintenance codes ill-suited for the new pestilence, has made for a variety of claims for successful pest eradication; but often failure to control is easily passed on to the tenant, or a neighbor or the building manager or landlord and it is hard to support one method of bedbug elimination over any other.

It comes down to “now we know it.” For nearly eighty years, there was not a new bedbug case decided in New York courts involving landlord and tenant. Today’s New York court case will typically involve the application of our Warranty of Habitability statute. But by the first time a warranty of habitability and bedbug case came into the court’s domain for decision, we had missed the chance to an early end to the bedbug’s spread. Today, we can learn a lot from how bedbugs influenced our older landlord and tenant law. We should be able to see ourselves in the tenants who lived in our city one hundred years ago, and realize that by the time bedbugs made it to court at that time, bedbugs were all around.

Early on city life was treated similarly to living in the country. Judges were bound by the state of the law and judges applied the law as it existed to the new circumstances. At the start the law was applied without taking into account the difference in the setting. The loss of control a tenant had over the home in an apartment living in a city is not found when living in a house in the fields. The law gyrated in examining deprivations in habitability and gradually left behind the common law basis of our landlord and tenant law, that the tenant was the equal of a buyer in a market place and thus “let the buyer beware” slowly exited.

The difficulty faced by our earlier city dwellers when confronted by bedbugs was accepted at first as a problem that could be easily handled. That approach took time to change. The law itself developed to recognize that tenants could face problems in their homes, not anticipated by the tenant and the landlord, and not solvable, that would justify breaking of the lease by the tenant and the nonpayment of a portion of the agreed rent.

Today, we have bedbugs in an environment where our city dweller has little or no practical experience in fixing anything at all, let alone a mature insect infestation. Yet, as a community, we have as ancient an approach as we did long ago, when almost every tenant was assumed to have skills to cope with this problem.

Today while the notion is that the landlord must eradicate the bedbugs, in the absence of science, landlords and exterminators, and city agencies, all place an immense pressure upon the tenant to make the home ready for the techniques used by the pest control experts. Unlike any other condition in one’s home, other than perhaps a fire or a flash flood, bedbugs force the tenant into a virtual move-out while still maintaining the apartment as a home. No other home repair requires the tenant to pack all personal belongings, clothing, papers, books, and remove furniture or carpets, and take down pictures, and launder in hot water and then store all garments, or to dry-clean and store away from the home, and to encapsulate mattresses and box springs, just for a start, before extermination can begin. The old days of do-it-self with ant or roach spray do not apply against the bedbug. We are truly not prepared for the dislocation that a bedbug can present.

The harshest reality for our tenants and landlords today is that there is no guarantee that extermination will do the job. Tenants must put their home on hold while waiting out a bedbug life cycle to learn if the insect and its progeny are gone from the home. And because the bedbug is very good at lying dormant, each tenant pins the hope for insect-free living on the skill of the exterminator, the willingness of the landlord to see the eradication through and the cooperation of neighbors. As we are now all too aware, that will not prevent a hitchhiking bedbug to come back again to your home or to a neighbor’s. Living in an apartment in a near-permanent state of packed-up is disheartening.

Constructive Eviction

I looked upon the case law developed in the NY Courts late in the nineteenth century and early in the twentieth century, as a means to discover how judges grappled with the responsibility of a landlord to the tenant, for habitable housing, in an age where the common law rule was best expressed as “The tenant hires at his peril and a rule similar to caveat emptor applies and throws on the lessee the responsibility of examining as to the existence of defects in the premises and of providing against their ill effects…” (Benjamin Franklin v. Mary Brown, 118 N.Y. 110, 23 N.E. 124, Court of Appeals, 1889).

The early cases evolved from the creation of a new legal doctrine, called “constructive eviction.” The law that an “eviction,” whether total or partial, created a full defense against the landlord suing for remaining unpaid rent expanded to making the “constructive eviction” of the tenant a total defense against a landlord’s post-tenancy rent claim.

Previous, but for a breach of lease by the landlord or an actual or partial eviction from the property, tenants had few merit defenses, such as the rent sued for was in fact paid, and so-called “technical defenses.” Those technical defenses, dealing with the rent demand and the service of process, and notice of commencement of the case were similar to the defenses currently utilized by tenants in modern courts. Eerily, the ancient technical cases, read as though written in the modern era, because the so-called “technical defenses” are as real today as when first applied to the modern standard lawsuit for an eviction, the “summary proceeding.”

The early-era version of the summary proceeding (very similar to the modern form) for litigating an eviction cause for a landlord was invented in the early part of the 19th century as a “swift and expeditious remedy” to recover real property to provide a landlord a new method to evict a tenant, instead of the common law ejectment action.

New York State’s land owners convinced the New York legislature to create this new cause of action, in derogation of common law, to replace the common law ejectment action, because in common law the tenant was entitled to a jury trial and the “peers” often had more in common with the tenant-farmer than the wealthy land baron.

By itself, as a doctrine, “constructive eviction” grew from the body of early cases that recognized that an eviction of the tenant, by the landlord without court process, ended the tenant’s obligation to pay the rent that the tenant agreed to pay when the lease was made.

Courts then grappled with parsing the nature of the “eviction” itself, moving from the obvious outright physical ouster from the property [an “actual eviction”], to evictions that were “partial”, that means from a part of the rented or leased property [an “actual partial eviction” or a “partial eviction”] to actions more sublime, such as the landlord perpetrating a nuisance condition, by either directly causing the condition, or by not correcting the condition when informed.

A key element to the proof of a “constructive eviction” was that the condition that forced the tenant to abandon was not known or discoverable when the lease was made, could not when discovered be corrected by the tenant or by the landlord and, that also rendered the leased property unfit for the use actually contemplated by the lease. [Vermin or noxious smells in or about the house did not constitute eviction so as to justify abandonment of the premises by the tenant (Truesdell v. Booth, 4 Hun 100.) A bad smell in the pantry, and the kitchen being too hot with the stove in it, and bad smells from the front window, along with a stagnant pond of water near the place, bad smell from fish, and vermin in the bedrooms, were all matters that might have given some trouble to eradicate, yet none of them could be held sufficient to relieve the tenant from his liability, or to come within the rule that defines an eviction (Vanderbilt v. Persse, 3 E.D. Smith 428.)]

Courts looking to limit the doctrine of “constructive eviction” pointed to the written agreement made by the tenant and the landlord (the lease). “…The apartment in suit was not under the control of the plaintiff, and no evidence was given of any express covenant in the lease to keep the apartment free from vermin; and, in the absence of such a covenant, the lessee, under the circumstances detailed above and in the absence of fraud, deceit or wrong-doing on the part of the plaintiff, ran the risk of the condition of the property in that regard…” Franklin v. Brown, 118 N.Y. 110; Sherman v. Ludin, 79 A.D. 37.

In the newly discovered potential that an eviction could exist without a full or part physical ouster, the New York legislature sought to identify conditions that could exist and present a defense to a tenant, who quit the leased property, although owing a remainder portion of rent as agreed to in the lease.

“…Pomeroy v. Tyler, 9 N.Y. St. Rep. 514, was also a case very similar in its facts to the present one; and it was held, McAdam, Ch. J., writing the opinion, that the fact that the rooms occupied by the tenant were overrun with vermin, namely, bedbugs, cockroaches, croton-bugs and red ants, making it inconvenient to inhabit the premises and rendering them untenantable, did not constitute a constructive eviction of the tenant…

“…The following remarks of Chief Justice McAdam, in the course of such opinion, are especially applicable to the present case: ‘The legislature has passed a statute relieving tenants from their common law obligations, where the demised premises have been destroyed by fire, tempest or other sudden and unexpected event (Laws 1860, chap. 345; Suydam v. Jackson, 54 N.Y. 450), but the legislative sense of relief to tenants has not as yet reached the case of rats, mice, bugs, roaches or other vermin, and all questions as to them must be decided according to the wisdom of the common law. The inconvenience is one to which all more or less are subject at times; but which, with ordinary skill and attention, may be abated by the tenant.’“ Excerpt from Jacobs v. Morand, 59 Misc. 200, 59 Misc. 200, 110 N.Y.S. 208, 1908, (Supreme Court Of New York, Appellate Term.)

Even then, “constructive eviction” was a defense only if the courts recognized the condition that drove the tenant out of the home, as one so noxious and unsolvable, that the tenant’s swift departure evidenced the severity of the condition and the reasonableness of the departure.

“…Leases would not be worth the paper upon which they are written, if the engagements of parties could be set at naught upon such slight and trivial pretexts. To constitute a constructive eviction, there must be an intentional and injurious interference by the landlord, which deprives a tenant of the beneficial enjoyment of the demised premises, or materially impairs such beneficial enjoyment. An eviction depends upon the materiality of the deprivation. If trifling, and producing no substantial discomfort or serious inconvenience, it will be disregarded, and will not afford cause for the termination of the relation of landlord and tenant…” Excerpt from Seaboard Realty Co. v. Fuller, 33 Misc. 109, 67 N.Y.S. 146; (1900, Supreme Court Of New York, Appellate Term)

When judges first expanded the notion of constructive eviction to rental premises abandoned by the tenant due to uninhabitable conditions, the cases set the way for the eventual notion of a warranty that residential premises would be fit for human use. Many other jurisdictions adopted the warranty of habitability before New York. However, the judicial seeds for the New York warranty were set in the early 20th century bedbug cases.

New York vs Bed Bugs: Tell us about these cases. The 1908 decision is the case that would later be characterized as the “processes known to all housewives” case but it actually does not contain the phrase. That coinage belongs to another judge in 1913 who wasn’t actually deciding a bed bug case at all, if I understand correctly, but in trying to make an important distinction (one that I think prefigures the challenges of modern building-wide bed bug infestations where a single tenant acting alone does not really stand a chance) would open the door for yet another bed bug case…

Steven W. Smollens: The 1908 case is Jacobs v. Morand, and the court there relied upon another court’s decision, made in the case of Pomeroy v. Tyler, 9 N.Y. St. Rep. 514, where the quote goes as follows: “…the case of rats, mice, bugs, roaches or other vermin, and all questions as to them must be decided according to the wisdom of the common law. The inconvenience is one to which all more or less are subject at times; but which, with ordinary skill and attention, may be abated by the tenant…”

In 1913, in Barnard Realty Co. v. Bonwit, that became: “…The rule in Jacobs v. Morand (supra) in regard to bugs and ants within the apartment, which can be dealt with by the tenant by processes known to all housewives, should not be extended to cover offensive and unbearable nuisances outside of the apartment…”

Sometimes, the concept that the courts held to, that is, if a condition were bad but fixable, so that any ordinary person could find a way to deal with it, governed the language in place of the actual text. The “processes known to all housewives” was the sound bite that drove home the notion that courts were not going to protect rent-evading tenants, who after departing the home, were sued for the remainder of the rent, and then backwards, try to construct the “constructive eviction.” Judges knew, that if there were a tried and proven remedy, the abandonment by the tenant could not be defended.

The context for the “housewives” comes from Barnard v. Bonwit, the 1913 case:

“…This is an action to recover rent of an apartment. The defense was constructive eviction. The jury found for the defendant. The verdict having been set aside solely as contrary to law, the facts found are established. Defendant and his wife moved into an apartment on the top floor of a new apartment house on the 15th of September, 1910, and moved out on the 8th of November, 1910. The reason therefor was the disturbance caused by the nightly meetings and performances of rats in the walls and ceilings, coupled with a most offensive odor which increased until the place became untenantable.

There are two Appellate Term decisions, one (Jacobs v. Morand, 59 Misc. Rep. 200), in which the presence of bedbugs, croton bugs, red ants, etc., was held not to be sufficient to establish a constructive eviction; and the other (Madden v. Bullock, 115 N. Y. Supp. 723), which held that the loathsome stench of dead and decayed rats was sufficient.

Very large numbers of people live in tenement houses, apartment houses and apartment hotels in this city. Such tenants have, and can have, control only of the inside of their own limited demised premises. Conditions unknown to the ancient common law are thus created. This requires elasticity in the application of the principles thereof. An intolerable condition which the tenant neither causes nor can remedy seems to me warrants the application of the doctrine of constructive eviction. The rule in Jacobs v. Morand (supra) in regard to bugs and ants within the apartment, which can be dealt with by the tenant by processes known to all housewives, should not be extended to cover offensive and unbearable nuisances outside of the apartment. This tenant could not pull down the walls or the ceilings. He and his family ought not to be compelled to pay rent for an apartment in which they could not live.

This court has held that when the landlord had the entire control of the heating plant a failure to provide sufficient steam heat was enough to constitute constructive eviction. (Berlinger v. Macdonald, 149 App. Div. 5.) Of course that case is different from the one at bar because there it was within the power of the landlord to furnish the heat, and if he did not it was an act of omission upon his part. But here the jury have found the existence of an intolerable condition. The tenant did not cause it and could not remedy it. If any one could it was the landlord. He attempted to and failed. We think the flat dweller was justified in his abandonment of the premises. [Excerpt is from Barnard Realty Co. v. Bonwit, 155 A.D. 182, 184 (N.Y. App. Div. 1913)]

The first modern bed bug case, Streep v Simpson

1913 also brought the first modern bedbug case where the court’s analysis made the bedbug infestation the proper basis for finding a constructive eviction. It is worth noting, how present-day sounding the plight of the tenant was nearly one-hundred years ago:

Defendant, a tenant from year to year, was sued for the last month’s rent of a two-years’ occupancy of a flat in plaintiff’s apartment house which he abandoned just prior to the commencement of the last month in question. He sought to justify this abandonment upon the ground that he was constructively evicted owing to the presence of bedbugs in the house. The size of the apartment house does not appear save that there were two flats on a floor, the one occupied by the defendant being on the fourth floor. The defendant, with his family, had occupied this flat for eighteen months without observing the presence of the bugs. From that time on bedbugs were found in his flat, in the private hall thereof, in the parlor, dining-room, and bath-room, on the walls, in the closets, upon the clothing and in the beds to such an increasing and persistent extent as to cause the greatest discomfort and distress to the dwellers therein…

Shortly after having first observed them the defendant notified the landlord, and it appeared upon investigation that the bugs came from the flat underneath defendant’s. That flat was then occupied, but soon after became vacant, and the landlord employed an “exterminator,” who endeavored to drive the bugs both from the defendant’s flat and the one underneath, but without success; and despite the persistent efforts of this trained “exterminator,” coupled with those of the landlord, as well as the defendant and his wife and painters and decorators, the bedbugs continued to increase, befouling the walls, emitting odors and biting the occupants, and exhibiting in their migrations a tendency to abide in the defendant’s flat, probably because there were persons dwelling there. Such, in brief, is the proof, and so it may be said that the defendant’s flat was infested with bedbugs without his fault; and, as the court below has found a constructive eviction, can it be assumed on appeal that the premises were rendered untenantable and that the landlord must bear the loss of the rent?…

Observing the limitations placed by the Appellate Division upon the case of Jacobs v. Morand, as to bugs within the apartment which can be dealt with by the tenant himself, and applying the language of Mr. Justice Clarke, who wrote for the court in Barnard Realty Co. v. Bonwit, we have reached the conclusion that, under the circumstances shown, it could be found, as a fact, that the defendant was constructively evicted and that his abandonment of his tenancy was justifiable.

The proof here shows such a condition as amounted to an insufferable nuisance, and where its existence in an apartment house is in nowise attributable to the fault of the tenant, but arises and is due to conditions in another part of the same building into which the landlord may go and apply a remedy, if remediable, the tenant must be deemed to have been precluded from a beneficial enjoyment of the premises and his abandonment thereof bars the lessor’s action for the recovery of rent. Considering the landlord’s control over the vacant flat underneath for a period of about two months, and the defendant’s eagerness to afford him every opportunity and aid to rid the latter’s flat of the bugs, their presence cannot be said, as a matter of law, not to be due in some measure to the landlord’s fault, or, at least, to his inability to continue the habitableness of the defendant’s dwelling place. An eviction depends upon the materiality of the deprivation. If trifling, and producing no substantial discomfort or serious inconvenience, it will be disregarded and will not afford cause for the termination of the relation of landlord and tenant.” Seaboard Realty Co. v. Fuller, 33 Misc. Rep. 110.

Here the deprivation was most material. It was by no means trifling, and not only did it produce substantial discomfort and severe inconvenience but it amounted to an intolerable state. Whether or not the deprivation is material is a question of fact, and that having been found below in favor of the defendant the judgment should be affirmed, with costs. [The excerpt is from Streep v. Simpson, 80 Misc. 666, 666-669 (N.Y. Misc. 1913)]

The warranty of habitability

New York vs Bed Bugs: So, from an inconvenience to which all more or less are subject at times and processes known to all housewives, to an intolerable condition that the tenant did not cause and cannot remedy on his own. From caveat emptor to an incipient implied warranty of habitability — would that be an accurate way to put it? (But I thought the warranty of habitability was common law, so why did it take so long for it to be re-claimed?)

Steven W. Smollens: Well in fact, the warranty of habitability did not derive from our common law. Our law before we made statutes to define our law, was made in courts, by judges and lawyers and plain folks, taking their disputes to trial and then on to appeal.

Sometimes, those disputes involving claims for monetary damages were for less than $200 and were not finally determined until the battling opponents had made their way from a trial court to the Appellate Division. Along the way the law of Constructive Eviction was helped along by bedbugs and the dueling over which party, landlord or former tenant, was entitled to the rent.

Codified in Real Property Law § 235-b, as amended, the warranty of habitability had its genesis in the trial courts, where judges faced routinely the problems of urban tenants, whose landlords demanded payment of their rent, while not providing to their tenants the benefits they had “bargained” for in their rental agreement. New York law, slowly evolving from its agrarian roots, had not recognized the relationship between the tenant’s obligation to pay rent, and the landlord’s obligation to provide rental premises fit for human habitation.

Absent a fraud, there was “no law against letting a tumble-down house.” As long as there existed an abundance of rental housing, tenants were able to move away from their problems and take the risks inherent in establishing a constructive eviction.

Common sense concepts, involved in routine everyday life, such as grocery shopping (you would not expect to be required to pay for a full loaf of bread if the grocer were to sell only half a loaf) had no place in the relationship of landlord and tenant. As a lease had been found to be a conveyance of real property, the duty imposed by law upon the landlord was satisfied by the delivery of possession to the tenant.

Only the covenant of continued quiet enjoyment of the premises was impliedly warranted by the “conveyance” to the tenant by the landlord. As long as the tenant had the quiet (undisturbed) right to possession of the premises, the tenant remained duty bound to pay the rent, regardless of the conditions in the premises.

These concepts, existing at common law, of no duty to provide services by the landlord, led to landlords not providing maintenance or essential services, especially in areas tenanted by persons of low-income.

The law did not provide the tenant with the tools necessary to compel the landlord to provide essential services or make necessary repairs. Courts outside New York were the first to determine that a lease for residential property impliedly contained a warranty that the premises were habitable.

A lease was slowly seen as more a purchase of shelter than a transfer of real property, and so an implied fitness for the use intended (U.C.C. Sales) was seen as a more realistic approach to determine the obligations of landlords and tenants.

Our state moved into the modern era in 1975, well past the rest of the United States. At that time, an appeals court, the Appellate Division, Second Department declared: “…we relegate to the limbo of history the orthodox view of caveat lessee and hold that, unless expressly excepted, there is an implied warranty of habitability when a landlord leases premises for residential use…” [Excerpt from Tonetti v. Penati, 48 A.D.2d 25, 367 N.Y.S.2d 804 (A.D. Second Dept., 1975)]. That court cited with approval the similar warranty of habitability decisions made in jurisdictions outside New York, e.g., Washington, D.C., Hawaii, Iowa, New Jersey, California and New Hampshire.

The New York State legislature, quickly grabbed the warranty of habitability from the judges, and went further to provide that the warranty is implied in every lease for residential property and could not be excluded from a lease by a contrary express lease provision.

“Too many people remain unaware how many bedbugs can hide out in an ordinary picture frame”

New York vs Bed Bugs: Care to consider what might come next? What refinements do you think are necessary in order to comprehend the magnitude of the current situation? We see landlords and tenants struggling to get relief from each other and just chaos all around. Is the law adequate to the challenges faced by landlords and tenants with this pest? What do you see in your own practice? Or, put another way, what holes do you see legislators might try to fill?

Steven W. Smollens: Right now, as summer draws to a close, we are seeing more media attention, television and radio advertising, and other expressions to make the bedbug infestation more obvious and open. There are billboards along the road, and bedbug sniffing dogs appearing on morning news programs and newspaper articles to work on getting the message out. I have not seen a public service advertisement, or heard one on radio, and if I have missed any, then there are not enough. In a city where in any campaign season we are inundated with political literature, that form of attention grabbing saturation may help spread information and recognition of the growing potential of the bedbugs invasion.

Pest Control persons are candid that there is no one sure-fire method for success in any given bedbug problem, and many residents are not able to face-down the direction to empty all closets, clean and bag all clothing, pack and seal up everything else, and are likely to fail the test for preparation. When tenants are informed that the bugs can hide inside radios, computers and other electronic devices, can scurry off to hide in cracks and crevices in walls and floors, and hide out in electric outlets, the expectation of failure is very high, that the tenant will not be able to get the apartment ready for the exterminator.

There will be need for new technology. The insects life cycle has to be interrupted. Used furniture and mattresses have to be located to a place without people. The habits of urban scavengers in rescuing other persons’ discarded sofas and chairs has to stop. Too many people remain unaware how many bedbugs can hide out in an ordinary picture frame.

There is a positive role for government at least in so far as sponsoring and producing Public Service Ads and other hand out literature. This does not mean that the law is not in need for some updating, but the law here should add to the potential of success and not look to punish for failure. There is a public interest in making sure that places where people congregate, shop, ride, teach and learn, are encouraged to be on constant vigilance mode. There is no simple problem as “just one bedbug.”

Property managers and tenants should know it is as dangerous to drag an unenclosed mattress through a building’s public areas, as it would be if the mattress were smoldering. An insect will easily drop off an infested mattress in the building hallway and could easily escape to another apartment. Furniture discards should be arranged in advance. Furniture as well as mattresses should be well-wrapped before disposal.

All that requires more widespread and consistent information. Government should be able to handle that. Community groups and tenant associations should be able to distribute literature and post flyers to spread awareness.

New York City has a statute relating to the mandatory eradication of pests insects and rodents. It would seem from a straightforward reading of the statute that there is a shared primary burden on the tenant and the landlord to assure the mandatory eradication of these pests. In some way we may still be of the mindset that every one of us knows the proper way to rid their home of those unwanted annoyances. However the literature associated with pest control suggests that amateurs should not deal with the problem. On the flip side, it should be clear that the landlord has the primary burden for eradication of pests where the problem is beyond any one “dwelling.”

Occupant in control

New York vs Bed Bugs: Finally, what is this business of “occupant in control”!? Please help us out with this. The New York City Housing Maintenance Code, is it a relic from just this era we’ve been discussing? What does this confounding phrase mean?

Steven W. Smollens: I have to agree that there is no sound reason for continuation of arcane language, especially when we need certainty as to who is in charge of pest control and maintenance of the structure. In a positive light, the “occupant in control” should be the same as “owner” and that may bring the attention of the Office of Code Enforcement upon the owner’s registered managing agent, the building’s superintendent, a net lessee of the building owner, a subtenant of a net lessee in control of the entire property. Perhaps it is a way to make more persons and entities associated with “owner” as responsible as the “owner” for keeping “…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…”

That expansion to other responsible persons or entities is a means to gain a useful court or agency mandate against a real person or the person or entity actually in charge. I do not see that the term encompasses “tenant.” The Housing Maintenance Code is able to use the word or term “tenant” when it means tenant. So the absence of the word “tenant” from this section implies persons or entities as like the “owner” in control.

Related posts:

1. Bed bugs and the law in New York City
2. Reenactment of Article 151 of the NYC Health Code was adopted
3. The New Jersey Assembly bed bug bill
4. An interview with urban pest management expert Clive Boase
5. An evening of bed bugs, cont’d

But there were certainly people applying pressure from all sides. I am ever mindful of Council Member Gale Brewer’s sustained leadership on this issue over many years.

Let’s set aside for a moment the recommendations of the bed bug advisory board (PDF).

What do they actually plan to do? $500K is a substantial commitment (though some do not see it that way) — how are they going to spend it?

This is the press release.

And these are the relevant passages:

Based on the Board’s recommendations, the City will develop a web-based bed bug portal for public education and awareness; work to coordinate and improve bed bug abatement enforcement practices in housing and ensure up to date and effective training of pest management professionals.

and

The Bed Bug Portal will serve as a cost-effective outreach tool for any New Yorker affected by bed bugs. It will provide step-by-step instructions on how to prevent, confirm and manage an infestation, and offer information and training videos for landlords and pest management professionals. The Departments of Health and Mental Hygiene and Housing Preservation will also create joint enforcement teams to work with property owners to conduct affirmative inspections of neighboring apartments in multi-unit dwellings to help prevent and to stop the spread of bed bugs once they have been found. City agencies will also provide more extensive training for their inspectional, pest control and social service workforces to help keep up with the developing science of bed bug control, and to help tenants understand what they can do to prevent and respond to infestations.

The most promising aspects of this plan are the “affirmative inspections of neighboring apartments” — based on what the Health Department at the press conference called “enhanced expectations” of landlords and property managers (and, in referring to expecting tenants to open their doors, of tenants as well) — and the “training of the city’s inspectional, pest control and social service workforces.”

This is a lot. It’s more than I expected.

Systematically inspecting the apartments adjoining an infested apartment, on all sides, is in my view the single most effective step that can be taken. It is a lot easier said than done. There are no details available at this time (I’ve asked) about how exactly they intend to do this. If they manage to dispel the fear and short-term concerns that prevent property managers from acting rationally (according to reasonable self-interest) when faced with an infestation, then we can expect to see many infestations contained and eradicated, for less money, less time and less anguish.

Council Member Brewer talked specifically about helping the New York City Housing Authority with its bed bug control protocols. As you know, NYCHA services the pest control needs of its buildings directly with in-house pest control staff, and their resources are severely challenged. If they manage to do this and to do it well, then we will see a huge improvement in the lives of affected NYCHA residents. This alone would be a tremendous accomplishment. Successfully training social and health service providers who work for the city (to identify infestations in the homes of affected clients and patients and meaningfully participate in helping them, to prevent transmission to places they visit and to their own homes) would also be an extraordinary achievement.

Now that they’ve started, they will keep monitoring the prevalence of infestations.

I hope you will hold them accountable to these intentions. And help the city disseminate its (constructive) messages. Remember that until last week their messages were mixed, dispiriting and sometimes just wrong. The people who said those things are still there. Educating them first would be a good thing.

The list of what they will not do is long. Chief among them is not helping to establish social enterprise bed bug services for middle- and low-income households. The problem of access to affordable bed bug control services persists, and will not go away the day everyone learns to detect infestations early (and I hope that day is achievable).

The list of what the city cannot do is perhaps even longer. The city, for example, cannot regulate the pest control profession in the city. It cannot impose higher standards and cannot require additional training. It cannot fund research projects. It cannot solve Nicole’s problem. (Or will not, at some point it is effectively the same.)

I hope you will participate in this endeavor. Having a quiet chat with the neighbors, the super, the facilities manager at work, your friends and family might be a good first step. Surround yourself with bed bug-savvy people. Think about how you would go about solving an infestation if you had to. If you are responsible for a building or facility, learn and plan and keep up with developments. “We’ve never had a bed bug infestation” is not going to cut it anymore. What people will want to hear is “we have a plan for dealing with bed bugs, and have learned the following…”

Don’t stop going to the movies. The bed bugs are going to be here for a while.

I want to end by remembering what Stephen Kells wrote in 2006 (PDF):

When considering bed bugs as a systemic pest, we need to start looking for permanent sites within society that are likely to support reservoir infestations, and for temporary sites that have frequent human occupancy and provide bed bugs with an opportunity to spread to multiple sites. We must begin considering which inspection and control measures are needed in high-risk areas, what the costs in those areas will be, and what (if any) regulatory action might be necessary. I suspect that educating the public about prevention will be the most cost-effective procedure; however, the extent to which this information will be absorbed and used by people is unknown.

There are quite a lot of challenges ahead.

Related posts:

1. Giving bed bugs their due
2. Highs and lows, Part 1
3. A small business owner writes to the mayor
4. NYC’s Bed Bug Advisory Board: what is it and what is it for?
5. New York City Bed Bug Advisory Board

Despite the bad news, it is exciting to have this question included in the city’s health survey for the first time.

Not that there are no problems with this question. Does it not exhibit an anxiety about confirmation in its chosen proxy of professional pest control services? As there are problems, perhaps, with some of the alternatives one can think of. There must be an art to this and the Health Department, with its public health tracking expertise, may have wanted to distinguish actual infestations from unconfirmed or suspected situations. And yet, how many people self-treat? Out of necessity or preference? And how? Are they successful, with or without an exterminator? (The exterminator word, though deprecated in favor of pest management professional, is well chosen here.)

I hope this question is tweaked in the years to come.

In any case, 6.7% is high, higher than I thought/guessed based on a consideration of what the under-reporting rate might be.¹

Survey data is not yet available but will be posted at the city’s environmental health tracking portal and at the yet to be realized bed bug portal.

This is the first in a series of posts wrapping up recent developments. It is not a full return of the blog.

1. In the only other comparable survey I remember, the Spring 2008 Greater Cincinnati Health Survey’s question was “In the past year, have you experienced a problem with bed bugs in your home or apartment?” The rate was 7.9% in Hamilton County and 14.5% in the City of Cincinnati.

Related posts:

1. Greater Cincinnati Survey: 14.5% of Cincinnati respondents (7.9%, Hamilton County) report a bed bug problem
2. Talking bed bugs with David Cain, take 2
3. The Case of the Incredibly Squishy Bed Bug Stats
4. NPMA/University of Kentucky global bed bug survey
5. The New York City Council’s CouncilStat data: surprise, surprise, bed bugs make the list

There are a number of misconceptions about the available statistics in New York City, and this is the reason for this update.

First, unless otherwise noted, these are fiscal year numbers. NYC’s fiscal year runs from July 1 to June 30. Therefore, a phrase such as “so far this year there are” in a press report is meaningless unless contextualized.

There are no mechanisms to collect infestations data from businesses, theatres, and commercial buildings.

There are several NYC agencies that maintain (collect may be too strong a word for some of them) bed bug data. Just as an example, NYC has two housing agencies (a fact that escapes some writers), HPD and NYCHA (the New York City Housing Authority), and each maintains its own data.

The statistics obtained from HPD for FY 2009 and FY 2010 do not contain inspections completed data and NYCHA statistics are not included in this update.²

We do not have statistics from the Department of Education (DOE).³ Similarly, the New York City Council, HRA, etc.

One has to be careful of the following: reports do not equal complaints do not equal inspections do not equal violations. NYCHA residents call a centralized service line or 311 to request pest control services (and have a very hard time of it). Private residential tenants call 311 to lodge complaints against their landlords. For the last year that we have inspections completed data, FY 2008, there were 9,213 HPD complaints received but only 5,190 HPD inspections. And now we can see that in that same year there were 12,941 calls to 311 tagged as “bed bug complaint – residence.”

Some co-op residents end up calling 311.⁴ However, we don’t know how many co-op residents are availing themselves of HPD complaints to compel their boards to act.

The final misconception I have given up on, and that is the idea that HPD stats somehow accurately represent the distribution of bed bugs in the city. So you will see references to so many bed bugs in X neighborhood but almost no bed bugs in Y neighborhood. But I can’t bring myself to explain all the reasons why this is flawed again. Just think about what an adversarial landlord-tenant complaint/violation system is like and the types of buildings and the disposition of landlords that are likely to feature in such a system.

The good news, if you do want to go down that path, is that there was a 37.6% decline in complaints in Queens Community District 3 (East Elmhurst, Jackson Heights, North Corona) in FY 2010.

Too bad, then, that there was a 48.2% rise in Brooklyn CD 3 (Bedford-Stuyvesant, Stuyvesant Heights, Tompkins Park North).

Instructions to find your community district are in the udpate: NYC Bed Bug Statistics Fiscal Year 2010 Update (PDF).

I hope this is useful.

Best wishes.

More interesting (summer) fun with bed bug stats here and here. Also interesting and surprisingly fun is the interactive online course about bed bug management developed by HPD.

1. Specifically: June 2008 (PDF), June 2009 (PDF), and June 2010 (PDF) directory assistance reports.
2. For HPD inspections data through FY 2008 and for NYCHA statistics, both obtained under FOIL, please see Bed Bugs in New York City: A Citizen’s Guide to the Problem (February, 2009 – PDF).
3. DOE bed bug statistics, like most NYC agency bed bug statistics, are not available to the public. However, in the 2009 WoodGreen report, Bed Bugs are Back: Are We Ready?, a figure of 300 bed bug complaints in NYC schools in 2007 is cited.
4. Please note that a recent Q&A in The Cooperator described an HPD memorandum in which HPD “requires cooperatives to assume the responsibility for eliminating bedbug infestations.”

Related posts:

1. NYC’s bed bug math problem
2. The New York City Council’s CouncilStat data: surprise, surprise, bed bugs make the list
3. 311 finally has bed bug category
4. Bed bug math redux
5. Make it right, WashPo!

There is no bed bug task force. What the city created was a bed bug advisory board.

I have no good answers to the following questions:

• what is happening with the bed bug task force bed bug advisory board?
• what is the bed bug advisory board’s position/advice on X?
• where can I read the report of the NYC bed bug advisory board?

The board met for six months and submitted its recommendations on April 1st.

At this point it is not realistic to expect meaningful action on the board’s recommendations, or even for the board’s report to be made public.

If you want to read the report of the NYC Bed Bug Advisory Board, you should probably file a Freedom of Information Law request. (You’d need to find the records access officer for the Mayor’s Office and/or City Council. The name of the document you want to request is: Recommendations for the Management of Bed Bugs in New York City, New York City Bed Bug Advisory Board, Report to the Mayor and City Council, April 2010.)

Where do I think this leaves New York City? If the question is bed bugs then the all-purpose answer is nobody cares. (The most notable and enduring exception will always be Council Member Gale Brewer.)

For now you should forget the idea of a bed bug task force.

What else is there?

There are two avenues that remain open even if they are unlikely to be productive in the city’s present administration and bed bug environment (one has to call it something).

It seems certain that lawmakers will continue to eye the contours—the ‘no fiscal impact’ contours at least—of the bed bug problem for legislative opportunities. But what is necessary for such efforts to succeed is a difficult process of broad consultation of all stakeholders. The New Jersey bed bug bill is an example of the kind of consensus-based approach that, for all its challenges, is at least grounded in a solid hearing of the issues. Efforts to date in the New York State Assembly have not been developed with this approach and are, in my view, likely to founder. Then there is the question of the need for strong public support, which cannot be taken for granted in the current environment of widespread stigma. If this were some other issue, some other pest, at this level of impact, there would already be laws and task forces galore.

Another possibility is public/private collaborative entities formed to provide advice and technical expertise. The most recently announced example is the Connecticut Coalition Against Bed Bugs. Could there ever be an analogue in New York City? For the moment I have to say there is very little chance of it.

Since you have read this far, did you catch the EPA calling bed bugs an environmental justice issue? Now there is some news, surely. Note too that in a recent article EPA officials broadly outlined what they intend to do.

Will the biggest city with the biggest bed bug problem just forego any possible assistance due to the simple fact of having no official interest? I’m not sure, presumably others could apply for any grants should they become available. But it seems a definite possibility.

Our days of asking you to write letters are over. But I felt this explanation was overdue.

Related posts:

1. Psst, CBS: there is no bed bug task force
2. A bed bug task force for New York City
3. 3 months
4. A bed bug advisory board for New York City
5. Heartfelt thanks to all of you supporting our efforts for a New York City bed bug task force

“Bed Bugs: What You Don’t Know Could Come Back to Bite You” with Richard Cooper | The New York Public Library — see also the flyer (PDF):

Acquire the background on the resurgence of bed bugs in the United States over the past ten years, learn about the emotional, financial and legal impact associated with bed bug infestations, find out about the aspects of biology and behavior that make bed bugs one of the most challenging pests to eliminate, discover what is and is not effective in controlling bed bug infestations, the steps that you can take to protect yourself and what to do if you suspect that you have bed bugs.

This is a free event for a general audience but could be very useful to property managers and assorted bed bug-besieged parties…

There are so few educational opportunities in the city, I thought you’d want to know despite the very late notice.

Update: The room was full, the lecture naturally very useful and informative and, judging by the questions, very well-received.

No, unfortunately, posting will not resume. While I’m here, however, let me recommend if you haven’t seen it Richard Cooper’s (and colleagues’) recent article about bed bugs in offices (PDF).

Best…

Related posts:

1. An evening of bed bugs
2. An evening of bed bugs, cont’d
3. Leadership and hope: Stop Bedbugs DC
4. The NYC Council will hold a hearing on three bed bug bills on February 24
5. Stop Bedbugs DC: a bed bug summit to start the dialogue to end the bed bugs

But it’s only been 4 months and in looking at this today I find it almost painful to look at.

The only solutions that hold any promise, and they are on a scale from might never happen to don’t hold your breath, are the reintroduction of effective residual insecticides, real DIY protocols, and new technologies.

I missed the deadline to write a comment on the propoxur request because I read the NRDC (PDF) and Beyond Pesticides letters and then could not get the emotion out of my letter. Where do these people live, I wonder? (Also, I thought NRDC had NPMA on speed dial these days. Couldn’t they, I don’t know, pick up the phone and get a clue?)

Sometimes I get emails from people in other cities and I always tell them to look to the work of the Central Ohio Bed Bug Task Force, to the planning work of the Cincinnati/Hamilton County Joint Bed Bug Task Force and to all that has been achieved in Toronto.

The New York City Bed Bug Advisory Board is writing its report. It is due in little more than a month.

New York vs Bed Bugs will end its run after its release — and if it is not released, well.

I will do my best to write about all the things I wanted to write about before then.

Related posts:

1. Stepping up our campaign: a sample letter to the Speaker of the City Council
2. Reminder: our CitizenSpeak campaign
3. New York versus Bed Bugs
4. One more letter
5. 3 months

The New York City Department of Health and Mental Hygiene has published a new bed bug guide, Preventing and Getting Rid of Bed Bugs Safely (PDF), available in English as a printed booklet by calling 311, and in Spanish (PDF) and Chinese (PDF) on the web.

This guide is a part of the Health Department’s Healthy Homes guides. It uses spare and easy-to-follow text and drawings like this one:

Infested with bedbugs - graphic from DOHMH Healthy Homes bed bug guide

Not to understate things but you must realize that this is a vast improvement on the city’s previous bed bug fact sheet.

Here are some key messages that I like in this new publication:

• It tells you one of the most important things you should know about bed bugs:

Some people do not react to bed bug bites.

• It tells you that bed bugs are not your fault:

If you have bed bugs, you shouldn’t feel ashamed. Anyone can get bed bugs. Notify your landlord and neighbors. The sooner everyone responds, the more successful everyone will be.

• It tells you not to use foggers and bombs in the only language that will mean anything to you in your desperate state:

Do not use pesticide bombs or foggers to control pests. They can make conditions worse.

• It tells you that your efforts will help but does not lie to you and doesn’t shame you for not being able to get rid of bed bugs solely with a vacuum cleaner (like so many others do):

Cleaning and disinfecting will help to reduce bed bugs and their spread but may not get rid of them totally.

• It recommends to landlords that they:

Notify tenants, and inspect all units adjacent to, above and below apartments found to have bed bugs.

If you’ve been around the bed bug block, I know exactly what you are thinking. I do. So here are some suggestions for you.

If you think the guide leaves out important information, or you have specific tips to share, take out a red pen! Call 311 and order a copy of the guide and then annotate it with your best tips and information before you give it to your friend, neighbor, acquaintance down the street. But please do share it. If you know there are bed bug problems in your neighborhood, share this guide with others. Spread the word and be a part of the solution and all that.

Now there is finally a city publication that can serve as a basic guide both to build awareness and to help the newly exposed.

Please share and build upon this effort. We’re all in this together. (Okay, I’ll stop before I tell you how moved I was to see this on the Health Department’s website.)

Please note that this guide, like the HPD bed bug course, was not developed by the Bed Bug Advisory Board. The advisory board is not a task force, remember?

Still, this is such important progress. You have no idea. Or maybe you do, and so I hope you will appreciate what this represents.

Here’s a screenshot of this I-never-thought-I’d-see-it development:

New bed bug guide on the city's Health Department website - February 5, 2010

Related posts:

1. NYS DEC will classify total release foggers as restricted-use products
2. DEC backs down from announced consumer ban of total release foggers
3. Permanent prophylactic measures, city of plastic bags
4. NYC Department of Health at National Bed Bug Summit (plus agenda and webinar details)
5. An evening of bed bugs, cont’d

February 3, 2010

The Honorable Antoine Thompson
Chairman
Senate Environmental Conservation Committee
Legislative Office Building, Room 902
Albany, New York 12247

Dear Senator Thompson,

I am writing to you in support of the Community Integrated Pest Management Program at Cornell University.

As a co-founder of New York vs Bed Bugs, a policy advocacy organization in New York City, I have worked closely with an IPM Specialist at the Community Integrated Pest Management Program, Dr. Jody Gangloff-Kaufmann, most recently on the New York City Bed Bug Advisory Board which Dr. Gangloff-Kaufmann chairs.

Bed bugs are rapidly spreading in New York City, as in other North American cities, causing extraordinary physical, psychological and financial distress wherever they appear; and severely straining the budgets and resources of families, property owners, social and health services providers, business owners and government agencies.

Current bed bug control methods and practices are variously difficult, ineffective and, crucially, unaffordable. There are no programs or resources available to the majority of New York residents who are affected by bed bug infestations. It is particularly troubling that the most vulnerable populations are at higher risk for suffering entrenched bed bug infestations.

In a period of deepening economic austerity, the prospects for bed bug control in New York City are realistically bleak. In this challenging landscape, therefore, the work of the Community Integrated Pest Management Program at Cornell University is vital. The Community Integrated Pest Management Program at Cornell University has worked to develop and deliver educational resources to combat bed bug infestations in New York City and New York State. In 2008 it produced Guidelines for Prevention and Management of Bed Bugs in Shelters and Group Living Facilities, a publication that has had a significant impact far beyond its intended audience, becoming an extremely valuable resource for all affected New Yorkers. The Program has a comprehensive website about bed bugs and delivers bed bug management education and advice through various channels, including innovative tools such as informational wallet cards [PDF] targeting the needs of travelers and college students. This combination of attention to an emergent public health pest problem and concerted effort at producing useful guidance and educational materials, especially for underserved populations, is a critical response that is singular in the state, with no other organizations taking on this task.

I urge you to restore the Community Integrated Pest Management Program at Cornell University to its historic funding level of $400,000. Please take steps to preserve one of the few pest management education resources available to New York residents at a time when they are ill-equipped to cope with an unprecedented resurgence of bed bug infestations.

Respectfully,

Renee Corea
New York vs Bed Bugs

cc: Donald A. Rutz, Director, NYS IPM Program

Related posts:

1. Details of the projected budget needs for Cincinnati’s Bed Bug Inspection Program
2. Bed bugs and public health at the 6th International IPM Symposium
3. NYC Health Code, Pest Prevention and Management
4. Bed bugs as vehicle for change
5. A bed bug management plan for a Chelsea co-op