Mold spores are all around us. That’s a fact of life. A small portion of the human population is allergic to some mold spore varieties. Unfortunately, those with mold allergies are typically allergic to the type of mold you might find growing in your rental property.
While only a small portion of the population has allergies related to mold, it can seem to a landlord or investor as if a disproportionate share of these people are tenants! Too often, when a tenant finds mold in the property, he or she thinks “money.”
What’s a landlord to do? Your best defense, as they say, is offense: Take the initiative to keep mold away. But if it appears despite your best prevention efforts, take care of it as soon as possible.
Best practices include preventing any water from entering the property outside of the plumbing system. All roof leaks and plumbing leaks should be repaired immediately. After the leak is fixed, make sure to REMOVE any drywall and carpet padding that got wet and then thoroughly dry any other components that also got wet, such as the wood studs, carpeting, etc. and treat those areas with a fungicide.
A common mistake many landlords make is to prime over water-stained drywall without realizing that often the mold is growing on the back side of the drywall – out of sight. And it can continue to grow, out of sight, until it becomes a serious problem.
Many contractors can remove mold from within your property. First, you need to confirm there is a mold problem. They have equipment that will let them measure the amount of mold spores within an air sample and compare that to the amount of mold spores in an air sample from outside the property. They also have sensors that can identify where the excess moisture is.
After confirming the presence of mold, the contractor can kill it and remove any affected drywall, etc. as needed. Doing this work with urgency will reduce the chance you have a dispute with your tenant.
What Not to Do
Often the tenant requests that the landlord have the mold tested to determine the specific type. DO NOT DO THIS.
First, you have no obligation to test it. You just have to get rid of it.
Second, the “expert” that is qualified to determine what type of mold you have is called an Environmental Hygienist. They are pretty expensive. And the results of their test become free “evidence” available to your tenant through the discovery process when they decide to sue you for all the suffering they endured due to the mold problem.
Reduced Liability vs. a Few More Dollars in Rent
Generally speaking, a landlord is not liable for injury to a tenant on the property UNLESS the tenant reported the problem to the landlord and the landlord does nothing to correct the problem.
There have been several lawsuits filed by tenants against landlords related to harm that came to the tenant due to mold in the property.
In lawsuits where the tenant won a substantial judgment against a landlord, the circumstances often involve a tenant notifying the landlord of the mold problem, but the landlord does not make the repair and refuses to let the tenant out of the lease. So any harm caused to the tenant can be traced back to the landlord’s actions and decisions.
In order to reduce our liability regarding mold claims, we deal with these issues urgently and thoroughly. However, from time to time, we have a tenant tell us that a) there is mold in the property AND b) the mold is making them sick!
Most residential leases have a “Destruction of Premises” clause that permits the lease to be terminated immediately with no penalty due from either party if the property becomes uninhabitable due to fire. The lease form we use also includes mold, flooding, storm and other acts of God that render the property uninhabitable.
Once the tenant tells us the mold is making them sick, we notify them that the Destruction of Premises clause is now in effect and they need to move from the property ASAP. In so doing, the tenant would have a very weak claim against the landlord because as soon as the tenant claimed there was mold and it was making them sick, they were released from the lease so they could move to a safe place.
In some cases the tenants actually moved out. While the landlord had to suffer some vacancy and expenses related to getting a new tenant, this is far less expensive than having to fight a lawsuit.
In many cases, when we notified the tenant that they would have to move, they respond with “we don’t want to move, we just want compensation.” That is not an option.
Several of these tenants wanted to stay in the property after all but the only way we permit that is if they sign a Hold Harmless agreement stating they won’t hold the landlord liable for any issues regarding mold in the property. We already gave them a chance to move out. If they choose to stay, which many have, then it needs to be at their own risk.
This technique has minimized the mold lawsuits we have had to defend and the few that were filed were easily dealt with because of our technique to minimize landlord liability.
About the Author
Michael E. Nelson, GRI® MPM® RMP®, is president of Excalibur Homes LLC in Alpharetta, Georgia. Excalibur is one of the few companies in Georgia that have been designated a Certified Residential Management Company® by the National Association of Residential Property Managers®. Excalibur’s expertise encompasses leasing, management and sales. For more information, call 678-825-0412 or email firstname.lastname@example.org.