Mold: Landlord Liability, Responsibility, and Prevention
There is a growing—and sometimes controversial—awareness of mold as an environmental hazard in the United States. This emerging discussion is a cause for concern among landlords and tenants, especially related to potential health and liability issues arising from mold problems. Landlords can be held liable for tenant health problems—such as asthma, nausea, skin rash, chronic fatigue, hemorrhaging, and cognitive losses—that are attributed to “toxic” mold exposure in their building. Some cases across the country resulted in multi-million-dollar verdicts. Conversely, tenants can be held responsible (through security deposit deductions and lawsuits) for causing—and contributing to—conditions that promote mold development.
Where is Mold Found?
Mold is sneaky. It develops silently, in a variety of colors and shapes. The most onerous kinds of mold—known as stachybotrys, penicillium, aspergilus, paecilomyces, and fusarium—are black, white, green, or gray. Some have a powdery texture, others are reflective and shiny. Some molds emit a peculiar odor; others have no scent at all.
Mold often grows on water-soaked materials; it thrives in humid conditions. Mold may grow out in the open, or it may stay hidden—between walls, under floors, and in less-accessible spots such as basements and attics.
The bottom line is: Mold can be found anywhere and everywhere.
Mold as a Health Hazard
As mentioned above, the classification of mold as an environmental hazard is sometimes controversial. The scientific and medical communities are in an ongoing debate about which molds, and what situations, pose serious health risks to people in their homes. Right now, there is no ultimate consensus.
Most experts agree that the overwhelming majority of mold types is not harmful to human health. Mold that grows on shower tiles and in the bath tub is a prime example of innocuous mold. Yet, it takes a professional to know whether a specific mold is harmful or just irksome.
Recently, several high-profile cases made their way through the courts. In these cases, plaintiffs claimed that their serious illnesses (infant lung hemorrhaging, cancer, brain damage, and other cognitive deficiencies, fibromyalgia, chronic fatigue syndrome, reactive airway dysfunction syndrome (“RADS”), and various other health problems) were the result of exposure to mold. Yet, relatively little is known for certain about the cause and effect relationship of mold exposure and illness. Exposure to mold is one thing. Determining whether an exposed individual has the mold in their system—by inhaling or ingesting it—is another. In fact, new DNA tests that measure the presence of mold in a blood sample are the only way to know for certain whether the mold is present in the body. And, even when mold is present, the health consequences—if any—might not be crystal clear. This uncertainty stems from a lack of firm medical data connecting mold exposure to a set of symptoms.
In other words, there are relatively few established links between mold exposure and any precise medical diagnosis. While the scientific and medical communities generally agree that exposure to high concentrations of mold is unhealthy, the research in this area is ongoing. This lack of certainly makes for unpredictable jury decisions.
The popular use of the term “toxic mold” further confuses public perception of the topic. Health issues related to mold aren’t exclusive to toxigenic varieties. All mold, whether toxigenic or not, may cause certain symptoms if it is present in high enough concentrations.
It is generally accepted that individuals with asthma (or other lung conditions), compromised immune systems, or other pre-existing illnesses have a heightened sensitivity to mold. Infants and the elderly also have a lower tolerance for exposure to mold.
Landlord Legal Responsibilities for Tenant Exposure to Mold
Michigan is one of many states that have yet to establish permissible mold standards. Michigan landlord responsibilities regarding mold and mold exposure are not clearly spelled out in building codes, ordinances, statutes, or regulations. Yet, it is possible that such standards and responsibilities are forthcoming. California, Indiana, Maryland, New Jersey, and Texas passed laws that provide guidelines and regulations for mold in indoor air. Will these laws find their way into Michigan statute? It’s difficult to predict, but landlords should keep themselves apprised of pertinent developments. RPOA members can stay up-to-date with the latest news on our website, which features timely reporting on the latest public policy developments pertaining to landlord and tenant law.
Landlord’s Duty to Maintain Habitable Premises Applies to Mold
Landlords aren’t off the hook simply because Michigan lacks specific mold laws. The law deems landlords responsible for maintaining fit and habitable housing and repairing rental property. These responsibilities extend to fixing the leaky pipes, windows, and roofs that often serve as the root causes of most mold. If a tenant can demonstrate that mold growth is the result of the landlord’s negligent approach to fixing leaks, then that tenant may be able to hold the landlord responsible for it. Once negligence is established, the case’s success depends upon the tenant’s ability to convince a judge or jury that the mold caused a health problem. One successful case may lead to others against the same landlord, as it is widely accepted that mold spores travel and spread quickly and easily through air ducts and ventilation systems.
Michigan Tenant Strategies
In the absence of laws that specifically address a landlord’s duty (or liability) for mold prevention, Michigan Courts recognize two self-help strategies not taken by tenants displaced by serious mold outbreaks in their rental units. Landlords should also make themselves familiar with these strategies. The first method involves invoking the “implied warranty of habitability,” a legal doctrine that requires landlords to provide tenants with livable housing conditions. Regardless of limits specified in a written lease, Michigan landlords are bound by the implied warranty, which empowers tenants to withhold rent (and, in some cases, break their lease) while claiming that mold made their apartment uninhabitable. The second strategy involves tenants cleaning up the mold on their own, then subtracting the cost from their rent. This approach is known as “repair and deduct.”
Mold Problems Attributable to Tenants
Liability shifts when mold grows as the result of a tenant’s behavior. Sometimes, tenants create conditions conducive to mold growth by preventing proper ventilation, creating high indoor humidity, or failing to maintain necessary cleanliness. The landlord is not liable when a tenant’s own negligence solely causes injury.
If a landlord has reason to believe that a departing tenant caused a mold problem, the landlord may deduct the cost of cleaning from that tenant’s security deposit—provided that they provide the tenant with a written explanation of the mold damage costs (along with any other claimed damages) within 30 days of the lease termination. For more information on how to properly deduct rental unit damages from a tenant’s security deposit, please see RPOA’s related article: What is a Security Deposit, Inventory Checklist and a Notice of Damages?
Mold Clauses in Leases
Some landlords attempt to relieve themselves from mold growth liability through carefully-worded lease clauses. These clauses, however, are no panacea. In fact, there’s a good chance that a Michigan court would refuse to enforce such a clause due to its unconscionable nature. Recently, a Tennessee court did just that, ruling that enforcement would be against public policy.
Common sense instructs landlords and tenants alike to stay on top of potential mold problems. As more cases of mold litigation make their way through the courts, a landlord’s best approach involves making routine efforts—as part of the upkeep process—to prevent the conditions that lead to mold growth. Maintaining the structural integrity of the property (the roof, plumbing, and windows) is the landlord’s sole responsibility anyhow. As for tenants, it’s their responsibility to maintain a safe and clean rental unit. In sum, it’s in both parties’ best interest to work together to prevent and combat mold problems.