Who’s Responsible for Bed Bugs in a Condo in NY, or a Sprinkler Head Flood in a Condo in CA?

BED BUGS SPREAD IN A NEW YORK CONDO – WHO PAYS FOR THE MULTIPLE UNIT TREATMENTS?

HOA  OWNER KNOCKS OFF SPRINKLER HEAD IN CALIFORNIA STARTING A HUGE FLOOD. WHO PAYS FOR DAMAGE TO MULTIPLE UNITS AND COMMON AREA?

 

What’s worse for an owner in a condominium? The spread of bed bugs? Or flood from a broken sprinkler head?

 

The spread of bed bugs or termites from one unit to others that can be traced is probably worse. Accidentally knocking off a sprinkler head or overflowing a bathtub and causing a major discharge of water into a unit is  no picnic, it may cause more physical damage and result in more costs. But when it comes to individual liability, bringing in an infestation of bed bugs that spreads may be worse.

 

Many questions arise in both situations. Does the HOA have to pay for treatment in your Unit or repairs to your personal property? Can the Association recover costs from you as an individual or force you to treat the infestation yourself? To repair your own unit? Can your neighbors sue you for having to treat their units or repair their property in their Units? Can they force you to treat their units or make repairs?

 

I could answer the question related only to the bed bugs issue, but I think it helpful to contrast these two events because they would present diametrically opposed conclusions, assuming the HOA carries master insurance coverage for casualty losses. And owners can protect themselves for their own personal property casualty losses with HO-6 coverage in a condominium.

 

The big difference in the way these two types of problems would be analyzed from a liability standpoint relates to casualty insurance. Bed bugs aren’t covered by any casualty insurance that I am aware of. Sprinkler heads knocked off the ceiling or negligence related to overflowing a bathtub and causing a major flood usually is. For master coverage carried by the association, the common area portions of the building and structure are covered for fire and common casualties like water damage due to a sudden or accidental discharge. I say this with a caveat because sometimes certain water intrusion events are not covered and sometimes the very number of them causes denial of further claims (but if not that, certainly increases in premiums!).

 

Now, for the injured parties: they will be looking for legal recourse from the owner they think responsible.

 

Here is the question that raised this whole diatribe about bed bugs and water damage:

 

“My [very elderly mother lives in a condo in ___, N.Y., with my disabled sister, who requires a live-in aide (provided by a Medicaid vendor). Over a year ago, one of the aides brought bed bugs into the unit and was immediately dismissed by the agency…. The building manager was then alerted and my mother followed the treatment protocol, at her own expense of course. However, the bugs reappeared a few months later, … “ [and the story goes on with repeated reoccurrences and other units which were positioned in the same column.]

 

The writer’s mother was ordered by the Condo association to remove all her carpet which she did. And then the mother was notified her that she would be responsible for all costs associated with remediation in the other units. The pertinent question raised was: “Can she be responsible for other units?” and “Some treatments are more expensive than others, can the Board order my mother to pay for the more expensive treatments? And multiple treatments concurrently?” and “The bedbugs are believed to have gone through the walls, aren’t the walls common elements?”

 

The best I can do here  is “surmise”. Don’t take any of this as advice but rather food for thought. I have not seen any documents and couldn’t give out advice to this writer anyway because haven’t created an attorney-client relationship and the kicker, of course, I am not licensed in NY. But it is a good subject for a blog and I can take the liberty of sharing my thought processes with readers, covering some of the possibilities.

 

First of all, I need to make an assumption that the Condo association can establish the origination and cause because without that I believe the solution to the problem in each unit would fall to the owner of that unit.  If you can’t prove causation, one important element of a tort claim to hold someone else responsible fails. And I think it’s unlikely here that any insurance coverage would be available.

 

Once cause is established, assuming that the Condo board can make a good case for cause, the question is – who  is responsible for the cause? Here, it seems it would be the Medicaid worker. That employer of that person may have some liability. I would to see the contract with the company providing the service to see if there is any clause that would absolve the company of responsibility for its worker’s error. Obviously introducing bed bugs into a patient’s environment would fall outside of safe practices. That contract may be a provide recourse. If there are mitigating factors, at least here is one party that might have to take a place at the table to find a solution.

 

I would also ask to see the regulating documents. In California that would be the CC&Rs. I think in New York the regulating documents might be called deed restrictions or something else. I would check them to see if they provide any guidance with regard to pest infestations, who is responsible. Some documents say nothing. Some address termites but not cockroaches or bedbugs or the like. Some address bedbugs. I have written documents that do address pests brought in by owners or persons coming into their units – and these would make the owner responsible to take reasonable preventive measures to eradicate the pests in their unit.

 

I would look at the ownership, maintenance and insurance provisions as well to see if there is anything pertinent or helpful.

 

I would check the laws of the state. In California there is a statute on pests and organisms but I interpret it to relate to pests that do wood damage like termites or dry rot.

 

I would certainly inquire as to the Condo association’s policies and past practices to see if there is any indication the association has taken measures in other units to eradicate bedbugs or carried in pests.

 

If I were representing someone like this who was being ordered to pay costs for treating other units, I would gather more information – what proof or theory the board is arguing and exactly what evidence it has. It might be that the worker was the cause in the one unit but other owners may have done something to cause infestations without admitting the problem. Maybe some of them had traveled recently and stayed in motels. Did you know that you can check a website that provides a bed-bug registry on the internet to see if any recent reports of bed bugs have been made? It may seem far-fetched but if a neighbor recently stayed in a hotel that had a reported infestation, it would dilute the case against the 94 year old mother.  Maybe it went the other way, the neighbor carried in the bed bugs and they got to the mother’s unit, or maybe not.

 

Anyway, you see where I am going I hope. The more information one has the better one can fully analyze liability. In this case, it doesn’t look good for the mother from the standpoint of the condo association’s claims that her unit was the cause. The condo association has no legal relationship with the Medicaid provider so it would be up to the mother to look that direction for contribution.

 

Now, to briefly cover what happens in a covered event (meaning insurance comes into play). Again I would look at all of the above, and also at all insurance policies. The condo association policy probably will pay to repair the common area, assuming it is a covered event, and that may depend on the type of policy (all risk vs. specified risks – I am not an insurance expert and would get some help analyzing the policies.

 

The original party at fault might be held responsible for any uninsured damage to the association and/or any neighboring units, but not if the other parties were required to have insurance and didn’t.

 

The owners’ insurance carriers might try to subrogate against each other or the association or the association’s carrier might try to subrogate against the owner’s policies but in many cases, the governing documents and/or policies require or contain waiver of subrogation provisions.

 

That’s about all I can say about analyzing this situation with hints as to how it might come down. There is an article on my website called “Water Leaks, Start to Finish” at this url address: http://www.californiacondoguru.com/hoarticles/waterleaks.html that will tell you more about  that subject.

 

 

 

 

 

 

 

 

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