Environmental: Mold

Mold from HowtoSueYourLandlord.com

Flickr-Thanks to wikiteresa

Environmental-Mold

In the last few years there have been a large uptick in suits caused by mold. Mold is caused by the interaction of moisture with surrounding materials. Generally it is caused by a leak that flows into an area, remains stagnant and creates mold on surrounding surfaces. That mold gets into the air and circulates throughout the area and is ingested.

Molds are found virtually everywhere. Common indoor molds are Alternaria, Aspergillus, Cladosporium, and Penicillium. Most molds are harmless and only a few are toxic. There are two types of mold however which pose health risks to humans. First is Stachybotrys Chartarum, more commonly known as “black mold.” This is the one most associated with “toxic mold syndrome.” This fungus grows on materials that contain cellulose. Cellulose is contained in items such as wood, carpet, cardboard, wallpaper, wet leaves, hay, and straw. The paper exterior of drywall contains cellulose and mold is commonly found there. The other well-known toxic mold is Memnoniella.

Symptoms of Mold Exposure

There are not standard guidelines for mold exposure, the amount that is acceptable and the amount that is not. Where mold is found in high concentrations, the risks of being exposed to toxic mold include:

  • Headaches
  • Skin rashes
  • Respiratory problems
  • Lung disease
  • Memory loss
  • Infant death

 

A Quick Mold Test

If you suspect that your rental unit contains mold, you can easily test for it. Just go to your favorite search engine and type in “home mold test kit.” You can buy a test kit that in five minutes will tell you whether or not your rental unit contains any one of 32 different types of mold, including Stachybotrys Chartarum (black mold). The kit was available online when I searched, for under $40, and that is the cheapest test I’m aware of.

If this preliminary test shows the presence of mold in the residential unit, you should get a mold inspection done by an inspection firm, showing them the results from your home test. They can do a more thorough job in terms of identifying the source of the mold and coming up with a remediation plan to present to the landlord. That will document the cause of the problem and what it will take to fix it, in the opinion of an expert. If you only present the landlord with the results of the home test kit you will give them the opportunity to define the problem and remediate it in a way that best maximizes their position. That is not in your best interest. However this is an expensive solution because the remediation companies typically charge $1500 or more for their test. You’ll have to weigh the cost benefit of the home test versus the professional test.

If you have elected the professional tester option, once the remediation company presents you with their results, you will have some decisions to make. If the test shows high concentrations that are health endangering, it may be necessary for you to move out of the unit immediately, citing the health problems that were exposed by the remediation companies testing. Whether you move out or not you will have to present the findings to your landlord to give them the opportunity to remediate the problem.

What Does the Landlord Have to Do to Remediate?

Landlords have an obligation to mitigate the damages by getting rid of the mold as soon as possible. This remediation often involves ripping out walls and floor surfaces to eliminate the mold. The source of the water leak has to be stopped as well. The solution that landlord’s favor, pouring bleach on the mold, is an unsatisfactory solution, which can be easily documented by professionals in the area. During the remediation process you may be forced to temporarily leave your rental unit so that you do not breathe mold in the air that is exposed by tearing out walls and floors. If you have to leave, you may well have been “constructively evicted,” which means that because the landlord is failing to provide a habitable unit you can no longer live in the unit. At minimum your landlord would be responsible for paying the costs of relocating you elsewhere.

You will incur costs in this process. You should be able to recover the following types of costs:

  • Inspection
  • Repair costs
  • Replacing ruined household items
  • Finding other housing during repairs
  • Medical testing to ensure that you are not suffering from mold problems.
  • Any future medical expenses
  • Emotional distress

Your landlord or their insurance company will be responsible for paying you these amounts. When mold problems first hit the news at the beginning of the millennium, insurance companies rushed to write exclusions in their landlord policies for mold problems. As a result your landlord may not have insurance coverage for mold, in which case they would have to pay you without being reimbursed by the insurance company.

Documenting the Problem

During the negotiation with your landlord and/or insurance company you will need to provide documentation of the problem. Having good documentation is crucial to success in this area. If you are organized and thorough and document the situation in a fashion that would be well received by an attorney or a jury, you will achieve more than if you document the situation in slapdash fashion. At minimum you should expect to document your case by

  • Taking photos at every step of the process from the time you first discovered the mold through the repair process, including photos of any household items contaminated by mold.
  • Accumulate all your bills and receipts for inspection, repairs, medical expenses, household items that had to be replaced, relocation expenses, estimates of any future expenses
  • Any medical reports and records

At the conclusion of your negotiation with the landlord and perhaps their insurance company, you will have a decision to reach as to whether not to accept their final offer or to initiate a lawsuit. Many factors will impact your decision including the degree of harm to you, the landlord’s response when you brought the problem to their attention, the reasonableness of their approach to you, and other factors.

If You Initiate a Lawsuit You Will Need to Document That:

  • You had a leak
  • You reported the leak to the landlord
  • The landlord either did not respond at all or responded inadequately (only bleaching the mold for example, not correcting the source of the mold, not correcting the leak that allowed the mold to grow)
  • You suffered harm as a result

In some jurisdictions the landlord has an obligation to give you a mold disclosure report indicating that the unit has had prior mold problems. In this type of jurisdiction you also would have the ability to test for mold before occupying the unit. See if your jurisdiction has that type of requirement in its statutes. If it does, did the landlord strictly comply with their notification requirements? If not, it is further indication of their negligence.

Who Gets Sued in a Mold Negligence Case?

The short answer is “Everyone Involved.”

This would include:

  • The landlord (and their insurance company)
  • The property manager (and their insurance company)
  • The builder of the rental unit (and their general liability insurance provider)
  • The roofing subcontractor (if it was a roof leak) and their insurance company
  • Any maintenance contractors (and their insurance companies) who have ever worked on the rental unit in the area where the leak exists.
  • The suppliers of any defective building materials (and their insurance companies) that were used in the area where the leak exists.

Substantial Awards in Mold Cases.

A few of them are:

  • Two Delaware women sued their landlord claiming that the landlord failed to fix leaks and mold problems, which gave them asthma. A jury awarded them $1.04 million that was upheld by the Delaware Supreme Court.
  • A Texas jury awarded a homeowner $32 million because the jury believed that the insurance carrier acted unfairly, deceptively, and fraudulently while evaluating the property damage claim for mold. The award was reduced to $4 million dollars on appeal.
  • A California jury awarded a homeowner $18 million because his insurance carrier denied claims for mold damage that the jury believed were provable. The award was later reduced to $3 million

Despite these awards, mold cases are difficult to prove and people filing lawsuits over mold issues have had difficulty convincing judges or juries of the direct connection between the mold itself (which is usually easily provable) and the harm that was caused by the mold itself. The issue is the direct connection between the mold and the harm.

Still, if this issue affects you, it is worthwhile to proceed as far as you can. Look at the potential list of defendants above and you can see that is a large list, especially including their insurance companies. The three-jury award cases in the preceding paragraphs show that juries are prone to give large awards in situations where they believe the harm exists or the plaintiffs were treated unfairly. This makes insurance companies extremely nervous. In many cases they settle before the case goes to trial simply to avoid the uncertainty of a jury’s decision. Whether your own situation fits this model is a matter for your facts and circumstances and the statutes and precedents (case law) in your jurisdiction.

Leave a Reply