[RPPTL LandTen] Mold Addendumswish to abuse the

Tue Feb 24 03:55:09 PST 2015

I actually defended a mold claim recently that was filed by a former tenant and the landlord had used Harry's Mold Addendum and it held up very well.  In fact, I represented the property manager and the plaintiff didn't collect anything from my client at all.  The landlord's ins. co. paid out a small nuisance settlement just to avoid trial, but it definitely wasn't worth the plaintiff's attorney's time.  My client followed all the procedures set out in the Addendum by terminating the lease and renting a hotel, but like Harry said, oddly the tenant refused to move out for a couple of months.  Hmm, makes you wonder if he was looking for a lawsuit.  In any event, the Mold Addendum served both the owner and PM very well as a defense.  And if anyone has ever taken the depo of a mold expert, you'll understand why there are very few actual lawsuits filed for mold injuries - (1) proving causation is almost impossible; (2) proving that mold is actually toxic is almost impossible; (3) there's no proven permanent injury from exposure, the symptoms usually alleviate within a few days of moving away from the mold exposure; and (4) most of the time a tenant is just looking for free rent and will refuse to move out for quite a long time, so there's a contributory negligence issue.

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      From: Harry Heist <harry at evict.com>
 To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org> 
 Sent: Monday, February 23, 2015 9:42 PM
 Subject: Re: [RPPTL LandTen] Mold Addendumswish to abuse the

The purpose of the mold addendum I drafted is simple.  It allows us to terminate a lease in the event there is a serious mold situation as we deal with many cases where the tenant refuses to vacate and the situation is a hazard to the tenant or the property. It protects all parties.  It expands on the usual and common clause regarding termination due to severe damage, destruction, fire, flood, need for repairs, condemnation etc.  No tenant should live in a situation where there is a serious hazard but some refuse to vacate or allow the remediation.  I will only recommend to my clients that the mold addendum termination is invoked in cases where a certified mold inspector determines that the mold is a true danger. Most mold is harmless.   As for potential abuse, that is your department Leonard. The tenant has a remedy of the 7 Day rent withholding/termination. They can also call code enforcement, health department etc. Many tenants will try to use a small mold situation as a reason to not pay rent while “stewing” in what they claim is a mold infested apartment. Often serious mold situations are caused by the failure of the tenant to run the a/c in a reasonable manner, something we really cannot force a tenant to do.  As for tenant performed mold tests purchased from Home Depot, these are a complete joke.  Mold is a very complex issue. The reason you do not see more tort claims filed is that rarely can it be shown that the tenant has suffered health issues from the mold. The expression amongst attorneys in the earlier days that “mold is gold” is no more.   As a struggling young attorney back in the day, my wife and I decided to forego getting our air conditioning fixed in our home for almost a year. We left the windows open and used the ceiling fans. The home suddenly blossomed with mold. Clothes were ruined, shoes ruined and mold was everywhere.  The mold addendum is a useful tool for a landlord. I rarely see it abused nor would I  take a case where I felt the landlord was abusing it. Quite often though, we see mold situations caused by the tenant’s failure to run the a/c at all or to excessively use the a/c to the point of causing condensation on windows which migrates to window frames, sills  and walls causing mold growth which often goes unreported until the situation becomes severe.   Harry  LAW OFFICES OF 
HEIST, WEISSE, & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com 
Email: harry at evict.comTHIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.  From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Monday, February 23, 2015 7:45 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Mold Addendums  Todd:First, who is complaining about the mold??  If it is the tenant I look to see if the landlord knew of the mold before the apartment is rented.  If the tenant is complaining usually what I get for the tenant is some $$ to move (amount depends on how long they lived there and if the landlord knew of the mold before renting).  I also have my client do a mold test  which I would have a landlord do if they wanted to move a tenant out for mold.   If the landlord wants the tenant out and uses mold as the reason I think I could make a compelling argument  that the mold addendum is against public policy by using HUD’s Quality Housing Standards.                                         Leonard P. Cabral, Esq.Leonardcabral at lenslaw.com  From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Todd Allen
Sent: Monday, February 23, 2015 4:34 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Mold Addendums  Has anyone litigated a mold addendum that gives the landlord the ability to terminate the lease for the presence of mold (in the opinion of the landlord)?  Interested in hearing if anyone thinks this violates public policy.  
| Todd B. Allen, Esq. | Attorney |

Todd at LindsayAllenLaw.com13180 Livingston Rd, Suite 201
Naples, FL 34109
|  

| 
[office]
[mobile]
[fax] |   239.593.7900
239.300.3506
239.593.7909 |

www.LindsayAllenLaw.com
 |

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