Whose bedbugs are they?
Bedbugs have got everyone itching and they are increasingly being addressed in contracts to buy apartments. These days many buyer’s contract riders have a bed bug clause. The usual clause simply says that the seller has not reported any bed bugs or that the seller doesn’t have any bedbugs. On the surface that sounds fine but some sellers don’t want to blow or delay a deal if bedbugs are discovered after the contract is signed nor do they want to have a post closing fight about bedbugs. This seems reasonable for the seller but somehow feels inherently unfair to a buyer who wants to know that the seller didn’t leave any crawling surprises. So, if the buyer is successful in getting the seller to agree that there will be no bedbugs up to the closing, most would think the problem is solved. Well, I think not. Let’s just for the fun of it follow this possible scenario: (1) the seller agrees that there won’t be bedbugs up to the date of closing; (2) the seller finds some bedbugs before the closing but doesn’t tell anyone (or the seller gets them but doesn’t realize it); and (3) the buyer doesn’t see any bedbugs when the “day of closing inspection” occurs. Once the buyer moves in and finds the little critters the first call will be to the buyer’s lawyer for help who will then call the seller’s lawyer. I can guess that the seller’s lawyer will say “Well tell me, whose bedbugs are they? Did they come from the movers, the building move in elevator, or the buyers own house or apartment? Or did the buyer get them at some restaurant after the Closing?” and promptly hang up. Since I don’t know of a bed bug expert who can identify the prior home of the bedbugs, the buyer has, shall we say, a steep uphill and possibly losing battle. There is however, a possible solution that might MINIMIZE the risk of such an event. That is for the buyer to conduct a pre-closing bed bug inspection. In that way, the buyer can be reasonably assured that any bedbugs which are found crawling around after the closing were not the remains of the seller and the seller can be relieved of any post closing aggravation and not lose a deal.