Can you deny  exterminators  home access for  health reasons?

 Tenants' rights regarding  pesticide spraying differ  from state to state.

By Francesca Lyman
SPECIAL TO MSNBC

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Sept. 20 —  If you own your own home, you can choose to use chemicals to control for weeds or bugs — or turn to more environmentally friendly methods instead. But if you live in an apartment, condo or multiple-dwelling complex, and don’t want your home sprayed, can you deny access to your landlord or management company? This week, Your Environment answers our reader’s question. 

Q.     This morning on a news show, my wife heard a discussion that pesticides could lead to Parkinson’s disease. The news piece speaks directly to our immediate concerns, and I’m hoping you can help us. We live in an apartment in Manhattan. My wife is a breast cancer patient, and I am a heart patient. My wife and I are on medications that we feel are incompatible with the pesticides used by exterminators. We also feel that in any case pesticides are dangerous to our health and that of our child. Our landlord recently demanded access to our premises to have an exterminator spray our apartment. We reasonably asked that they provide us with the name of the exterminator and his phone number so that could find out what kinds of pesticides they intended to use. They have refused. We, in turn, refused access, which is technically a violation of our lease. Shouldn’t we have some rights in this situation? Do you have any data on pesticides specific to our concerns, and can you help us?

A.     You have hit on a word that is magic with lawyers. It seems to come up at all the delicate junctures of the law where your rights might be protected — or not. That word is “reasonably.”

Yes, a body of science and medicine is emerging showing links between certain diseases like Parkinson’s and pesticide exposures. Some studies indicate a very strong link. But the body of law here is, well, vague and rather weak.

New York State law requires commercial pesticide applicators to give landlords a written statement about the chemical to be applied as well as all warnings about the chemicals, says Judith Enck of the state Attorney General’s Office. Landlords are supposed to make that information available to tenants “upon request and at reasonable times.”

Nevertheless, as a tenant, at least in New York City, you have no right to stop a spraying. “Landlords do not have to get permission before spraying inside their apartments,” says Enck, citing the state’s landlord-tenant laws. “Your landlord can override you even if you object.”

Laws differ from state to state and locality to locality, but tenants living in other states may have similar problems, says Steve Fredrickson, a housing attorney with Columbia Legal Services in Seattle. Generally, landlords are obliged to take care of insect and rodent infestations, unless they can prove the tenant causes the infestation.

As for access, “the tenant can’t unreasonably withhold consent to get into their apartment,” says Fredrickson, “(and here, you get into that favorite lawyer word again) — if say, they just object to the idea of rat poison. They have to have a health rationale or scientific basis for their objection.”

In most states, says housing lawyer Mary Zulack, a professor at Columbia University Law School, the doctrine of habitation — that landlords must keep their properties habitable — would apply. But does a tenant have a right to insist on use of the least toxic methods of pest control in multiple-unit dwellings? “This presents a clash of obligations for a landlord and a question of which is a greater threat to habitability: the pests or the pesticides,” suggests Zulack. “I could see this getting fought out anywhere, anytime.”

Having a health disability, however, can improve your leverage. Under the Fair Housing Act and the Federal Rehabilitation Act of 1973, landlords are required to “reasonably accommodate” a tenant’s disability, notes Arlen Olson, director of the Tenants’ Union in Seattle. So not heeding a tenant’s complaints could be grounds for discrimination.

Landlord groups weren’t happy about a 1994 case of a condominium association that was forced to stop using pesticides and pay a $40,000 settlement because one resident-owner had multiple chemical sensitivities, says Kagan Owens of the National Coalition Against the Misuse of Pesticides in Washington, D.C.

“It’s not a loud issue, but tenants don’t tend to sue,” says Owens, who can cite dozens of cases nationwide in which people claim to have been injured after landlords failed to post warnings. “People should start refusing the spraying,” she says. “Most don’t know that these chemicals can be hazardous until it’s too late.”

Despite the known risks of these chemicals, many public buildings — including schools and day-care centers — still routinely spray pesticides, contributing to the 200 million pounds applied nationwide each year in buildings and on lawns, for so-called non-agricultural uses, according to the U.S. Environmental Protection Agency. A recent report for New York State, conducted by the watchdog group Environmental Advocates, found a strikingly higher use of pesticides in densely populated cities than in upstate farm areas.

WHO’S SENSITIVE?

People with immune system disorders and cancer are particularly sensitive to the chemicals, according to Dr. Fred Pescatore, an internist specializing in environmental medicine in New York City. “It’s an extra toxic burden to all of our bodies, but particularly to those who are already immune-compromised.”      Children are also particularly vulnerable because of their smaller size and developing organs.

If you object based on health or scientific reasons and your landlord insists upon spraying anyway, you can file a complaint with the state Department of Environmental Conservation (DEC), suggests Adrian Enache, manager of pesticide programs for the Environmental Protection Agency’s Region II, which includes New York. “Tenants who are chemically sensitive could register themselves with the New York State Poison Registry,” says Enache. “No one should have to accept a landlord coming in to spray against their will.”

Such disputes usually don’t end up in court, says Fredrickson, so “it’s hard to predict how a judge would rule.” Some could turn up in mediation centers, says Tony Hazapis, executive director of the Dispute Resolution Center in Seattle, where the rule is to “lower the level of confrontation and raise the level of civility.”

BEST DEFENSE A GOOD OFFENSE

In any case, the best defense is a good offense, says Fredrickson. “Tenants as a general rule have little power, but if they have legitimate reasons for objecting to a landlord, they can prepare a good case. However, the burden of proof is on the tenant.”

Without first getting exact information about what pesticides are to be used — information you are entitled to under New York State law — you can’t prove anything or pass it on to your doctors. There are literally hundreds of pesticides registered for use in New York State. One popular chemical for fighting New York cockroaches is chlorpyrifos. Banned by the EPA earlier this tear, it will be pulled off shelves soon. Even so, says DEC’s Enache, if your building’s super is certified as a pesticide applicator, he could continue to use it for years to come.

Until laws change, it might be a good idea to approach your landlord with that spirit of “reasonableness.”

“Appeal to your landlords’ sense of goodness,” suggests Enck. Ask your landlord or managing agent for a special provision in your lease, she urges, or even try to negotiate a way for them to try safer methods.

Original Article Appears at:  http://www.msnbc.com/news/464003.asp?cp1=1

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