Bats in Attic of Two-Family Residence:

This was originally published on the SGR Blog.

Did Second Tenant Engage in Unreasonable Behavior?

Bats infested the attic of a house in Hamptonburgh that renters occupied on the two floors. Was the second-floor tenant subject to eviction for failure to cooperate in remediation?

Coldenham, LLC owned a two-family residence located at 51 Neelytown Road in Hamptonburgh.  Katrina Maldonado and her two children lived in the second-floor apartment for over four years. Joyce Foulkes resided in the first-floor apartment for about twenty years.

Coldenham filed a proceeding alleging non-payment of rent and thereafter filed an additional petition alleging that Maldonado engaged in unreasonable behavior that substantially infringed on the use and enjoyment of other tenants or caused a substantial safety hazard to others.  The matter proceeded to a combined hearing and trial to determine the merits of the nuisance claim and the underlying claim for possession.

The Court credited the testimony of Coldenham’s principal, Jason Hartman, supported by Maldonado’s assertion that there were a number of bats occupying the attic area above the second-floor apartment. The only access to the attic area was through that apartment. But Maldonado changed the locks on her apartment doors and, on a number of occasions, unreasonably refused to permit access to both her apartment and the attic to correct the bat problem in the attic. The bat problem remained uncorrected.

In addition, the Court credited the testimony of Hartman, also supported by the testimony of Maldonado, that there was water leaking from the roof into the second-floor apartment, causing wet ceilings. Maldonado testified that mold was present as a result of the leaks. And the leaks caused water to enter the first-floor apartment occupied by Foulkes and the basement area near the electrical box serving the entire building. The leak, mold, and damage to the ceilings remained uncorrected.

On several occasions, Hartman asked Maldonado for access to her apartment to remove the bats, to repair the wet ceilings, and to fix the leaking roof. He offered to pay the cost for Maldonado and her children to temporarily move to a hotel while he corrected the bat and water/mold problems. But Maldonado unreasonably refused that offer. And the problems remain uncorrected.

The bat, water, and mold problems endangered not only the health and safety of Maldonado and her children but also the first-floor tenant and, if untreated and/or uncorrected, would likely threaten the structural integrity of the building,

And in addition to Maldonado’s unjustified refusal to permit Coldenham to fix the bat, water, and mold problem, she also had been discarding trash, glass, food, and cigarette butts on the ground at the exterior of the premises, which substantially infringed on the use and enjoyment of the premises by Foulkes, the first-floor tenant, who regularly used the littered-upon area.

The Court found that Coldenham established that Maldonado engaged in unreasonable behavior that substantially infringed on the use and enjoyment of the premises by others and endangered the health and safety of others.  And any claim that Maldonado had for a breach of the warranty of habitability was without merit since she substantially contributed to the condition of the premises by unreasonably refusing access to the apartment to correct the problems about which she then complained.

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