[RPPTL LandTen] Mold Addendumswish to abuse the

[Leonard Cabral]

Harry:
I agree with everything including that most mold is harmless.  The insurance companies only took notice when they had to shell out 10 million dollars and burn a perfectly almost new house down to remove  a  specific strain of deadly BLACK mold.   The problem comes in when the tenant invokes his remedy and serves a 7 Day rent withholding/termination (explanation coming) They can also call code enforcement but most code enforcement cannot or will not enforce mold. The health department is completely useless.  Try to file a complaint about mold in an apartment and see what happens.  I agree that 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 but I have seen tenant unload boxes of their belonging and before they can put their belonging away mold grows on the boxes and/or items in the boxes.  I agree that serious mold situations are sometimes caused by the failure of the tenant to run the a/c in a reasonable manner but the landlords or property managers do not explain the monthly electricity cost of running the a/c sufficiently to comply with the mold addendum.   The RUB comes in when the tenant properly serves a 7 Day rent withholding, the landlord does nothing and the tenant invokes his/her right to termination and 6 months down the road the tenant is getting collection calls for terminating their tenancy early. AND 6 months after that they cannot find decent housing because it is on their credit report (Harry you need to catch up with the CRA's requirement for a "meaningful" investigation even by the sub suppliers of credit reports).   This practice pisses me off.   I only take the more severe mold cases where I can document that the landlord has had mold issues in the past but I usually never litigate them but negotiate a settlement so the lease is properly revoked, the tenant gets a few bucks to move (if they haven't live there very long), get the return of their security deposit and if the tenant's credit report is dinged at a later date I have a great CRA case.

As for tenant performed mold tests purchased from Home Depot, I do not allow my clients to use these kits. They are a joke.  I have an environmental engineering company that will do a test for me for $400.00.  I will add that mold is a very complex "LEGAL" issue.  I agree partly with your reasoning on  tort claims but my feeling is they aren't filed because mold is everywhere and how can an expert witness pinpoint that the mold that is causing  a health issues is  from the mold in the house or the mold in their car or the workplace.  I had the perfect case (or so I thought) where the tenant had lung function tests before and after her tenancy showing a decrease in function but I could not prove that the mold in the home was physically  where she was contaminated as opposed to the mold in her car.   You said the expression amongst attorneys in the earlier days that "mold is gold" is no more is because it barely got off the ground.  There were only a few big cases that cost the insurance companies millions and the insurance companies panicked and starting paying all claims until they got smart and consulted some scientists.  I think they still take is seriously but they now investigate the cases.   I have heard mold compared to asbestos litigation in the early days and I had to laugh (as I have a minor in environmental science).  Mold is nothing like asbestos and the person who came up with that theory only showed how ignorant he was on mold.  Don't some people call it penicillin?

Harry hopefully we agree that there are some good landlord and good tenants. There are also bad landlord, some slumlords  as well as some bad tenants and deadbeat tenants.  Sorting them out is our job.
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 Harry Heist
Sent: Monday, February 23, 2015 9:43 PM
To: 'RPPTL Landlord Tenant Committee'
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

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From: landten-bounces at lists.flabarrpptl.org<mailto: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<mailto:Leonardcabral at lenslaw.com>

From: landten-bounces at lists.flabarrpptl.org<mailto: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.com<mailto:Todd at LindsayAllenLaw.com>

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Naples, FL 34109
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