Attorneys protecting housing providers when mold claims arise
As much as we love watching the Golden State Warriors flip an early 13-point deficit into a double-digit win against the Houston Rockets, there is a more popular sport in the Bay Area and throughout California. It is suing landlords.
Tenants have strong rights when it comes to habitability and few issues spark legal disputes faster than the discovery of mold, a type of fugus that grows in moist, warm, and humid environments and reproduced by releasing tiny, lightweight spores into the air, which can land on surfaces and begin to grow if there’s enough moisture.
The Toxic Mold Protection Act (SB 732) was enacted in 2001 and required the state to author a mold information booklet to educate renters on the signs of dampness or mold and the health risks of moldy buildings. It took two decades, but the Department of Public Health released its "Information on Dampness and Mold for Renters in California." Since January 1, 2022, this informational resource must be furnished to prospective renters.
It seems reasonable enough to alert residents that there is a potential hazard, but the mere suspicion of mold has been abused by tenants and their legal counsel to claim that the property is uninhabitable, justify the withholding of rent, and demand repairs. Worse yet, tenants can sue for damages. These costly lawsuits are aided by an army of tenants' attorneys who often represent renters free of charge.
Action items
What we'd like housing providers to do is review and, if necessary, update the verbiage in their lease agreements to ensure that there are mold disclosures.
At Bornstein Law, we have always been sticklers for documentation, and this is especially critical when housing providers are alerted by tenants of the possibility of mold. Please always make sure to document tenant reports, inspection findings, repair efforts, and any tenant-caused conditions in writing. Good records are often the deciding factor between winning or losing a mold dispute.
Above all else, do not ignore the concerns of tenants. In a perfect world, housing providers can conduct regular inspections of plumbing, roofs, windows, and ventilation systems to catch mold causes before they turn into major problems. But it's not a perfect world we live in. If a tenant complains about mold, here is a checklist.
Acknowledge the tenant's complaint immediately
As soon as possible, respond in writing (be it email, text, or letter), thanking the tenant for the notification and confirming that the matter will be investigated promptly.
Inspect the unit in a timely manner
Schedule an inspection within a few days and provide a 24-hour written notice of entry, per California Civil Code § 1954. In the event of an emergency, like a burst water pipe, the landlord can enter without proper notice. Entry is presumed reasonable on weekdays between 8 AM to 5 PM, and while landlords cannot insist on weekends or evening hours to gain access, they may enter if the tenant consents.
The landlord or their agent should document all observations with photos and take copious notes.
Identify and address the source of moisture
To grow and spread, mold needs moisture. An easy one is plumbing leaks, whether it is leaky pipes under sinks, hidden leaks inside walls, faulty water heaters, or leaky appliances like dishwashers and washing machines.
Roof leaks can be caused by damaged shingles, cracked flashing, and poor sealing around vents and chimneys. Water from roof links can seep into ceilings and walls, creating the perfect breeding ground for the growth of hidden mold.
Water intrusion through windows and doors is a common mold starter, be it poor caulking or sealing, broken or improperly installed windows/doors, and condensation build-up around windows.
Bathrooms are mold hot spots because of high humidity. There could be a lack of ventilation because there are no exhaust fans, they don't work, or tenants choose not to use them. Water spills or flooding from tubs and showers can allow mold to develop, as well as grout and tile cracks that allow water to seep behind walls.
Moisture combined with food particles can accelerate mold growth in kitchens, and the list can go on. Flooding and water intrusion, poor building maintenance, and high indoor humidity can all contribute to the formation of mold and invite liability for the landlord. After we isolate the cause of the moisture, we want to repair the source of the moisture as soon as possible.
Properly remediate the mold
For small mold areas like minor bathroom mildew, standard cleaning methods may be enough, but for larger or hidden mold (behind walls, from leaks), it is prudent to hire a licensed mold remediation contractor. If necessary, any contaminated materials such as drywall and carpet should be removed.
Before embarking on mold remediation, we'll have to ascertain a handful of things from a legal perspective.
1) The scope of work: Can the work be completed safely with tenants still occupying the premises, or does the work necessitate the displacement of the tenants? This will depend on whether the area can be segregated to not disrupt the tenancy and how severe the mold is.
2) If the tenant needs to be transitioned out of the rental unit to remediate mold, for how long? Certain jurisdictions, like San Francisco, require hefty relocation payments if a tenant is uprooted from their residence.
3) Is the work so tumultuous that it requires the tenant to be displaced for an extended period? If so, it may be possible to evict the tenant under the theory of substantial rehabilitation. This may present an opportunity for some housing providers to effectuate the work and raise the rent on unit turnover, although the landlord must offer the tenant the opportunity to return to the rental unit after the rehabilitation is completed, under the same rent they paid before the work began.
Many tenants do reoccupy the unit, especially if the rent is below market rate.
4) Can the tenant voluntarily vacate? We understand the value of a voluntary vacancy because typically, rents can not only be raised in a vacant unit, but with a properly prepared and enforceable tenant surrender of possession agreement, the tenant agrees not to sue the landlord for any claims that arise from the tenancy. This waiver may be attractive in the context of mold. We do not want tenants to sue the landlord down the road when they claim they suffered a respiratory condition or other ailment because of the presence of mold; the landlord is indemnified and held harmless.
A tenant buyout agreement whereby the tenant agrees to voluntarily vacate in exchange for compensation may be ideal if the price is right. More than "cash for keys," the owner is not only paying for a vacancy but also a complete release of claims.
Legal defenses when a tenant sues for health issues, property damage, or uninhabitability due to mold
Lack of notice or no opportunity to repair: If the landlord was never notified of the mold problem in a timely fashion, and they had no chance to fix it, this can be used as a defense. California Civil Code § 1941.1 and § 1942 require tenants to notify their landlord of conditions that make a unit uninhabitable before taking legal action.
Tenants are increasingly savvy. Many of them will claim that the unit is in an unlivable condition just to avoid paying rent, or use it as a defense in an unlawful detainer (eviction) action, whether there is any merit to this claim or not. The best practice for our clients is to show copies of inspection reports, maintenance records, emails, or texts to debunk this claim.
Tenant-caused conditions: It is possible that the tenant caused the mold through misuse or neglect. For example, Civil Code § 1941.2 requires tenants to keep premises clean and sanitary. Contact our office to get to the root of the problem.
Condition was not material to habitability: If the mold is minor, like small spots in bathroom caulking, the question we have to ask is: Did the mold materially affect health or safety? Is the mold on-toxic or minimal? Not every minor issue allows a tenant to claim “breach” of the implied warranty of habitability. Only material habitability violations are actionable under California law. However, issues that materially impact health and safety, like mold, often qualify. It is best to leave it up to the professionals.
Prompt remediation: If the landlord acted promptly and reasonably to remediate the mold problem, this should be highlighted. Generally speaking, housing providers are liable if they negligently fail to act. We want to provide the narrative that this was not the case.
Comparative fault: California follows a comparative fault rule - damages are reduced based on each party's percentage of fault. Whether it is not reporting leaks quickly, refusing access for repairs, or ignoring moisture problems, we can point out the tenant's contribution to the damages.
No connection between mold and tenant injury: The tenant must prove that any alleged health symptoms were actually caused by mold in the rental unit. The tenant must prove both duty and causation to win the lawsuit.
Mold disclosure compliance: The landlord should keep copies of signed mold disclosure forms after the inception of the tenancy. What we don't want is tenants feigning ignorance of the dangers of mold.
Statute of limitations: Perhaps the tenant filed the lawsuit too late. Personal injury claims must usually be filed within 2 years of the date of the injury or discovery of the injury and its cause. A properly prepared tenant buyout agreement can remove the concern of legal residue arising from the tenancy.
Mold is gold for tenants, their attorneys, and contractors.
Housing providers are required to maintain rental properties in a habitable condition. Units should be free from dampness, excess moisture, and visible mold.
Bornstein Law can help landlords prevent and address mold problems and defend against mold-related claims.
Topics of interest
Owner/Relative move-in evictions ›
Substantial rehabilitation evictions ›
Defending against tenant lawsuits ›
Reviewing & drafting lease agreements ›