[WSBARP] Mold in Rental Unit

Wed Jun 17 00:17:00 PDT 2015

I think the starting point is that the LL has a statutory and common law obligation to maintain the premises in an habitable condition. The presence of mold will render the premises uninhabitable to some degree. Also, if the building was built prior to 1978, it probably has lead based paint in it which could also be the source of the child’s illness. See RCW 70.103.010.

The statutory duty of the LL is in the first line of RCW 59.18.060. “The landlord will at all times during the tenancy keep the premises fit for human habitation….” The common law duty arises from the case law: Foisy v Wyman 83 Wn.2d 22 Supreme Court 1973 and “A tenant may premise an action against a landlord under any of three legal theories: the act, the rental agreement or the common law.” Landis & Landis v Nation Div. 1 2012.

Under Foisy, the court will determine the degree of uninhabitably and abate the rent proportionally for the period of habitation. If the court determines that the premises are completely uninhabitable, the tenant gets all his rent back and there would be no basis for either a 3 or 10 day notice. (I had a case, based on expert testimony, where the court found the premises totally uninhabitable.)

In Landis, the tenant was able to rescind the lease even before he took possession. (Rodents)

Your LL might want to think in terms of relying on his 20 day notice to vacate and give the tenant some money to make a deposit somewhere else. (I had that case just recently based on bed bugs.) I think the flip side of the tenant having to move if the premises are uninhabitable is constructive eviction. Either way the LL is the loser.

Howard Herman

Herman Jolley P S

509.220.5810

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of scott scottgthomaslaw.com
Sent: Tuesday, June 16, 2015 2:58 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Mold in Rental Unit

I had a case like this, in which tenant immediately complained to the air pollution control agency and to the lender on the project.  Long story short, it helps to have a good idea of whether or not the spots are mold, or something else.  Hiring an industrial hygienist to take cultures might save a lot of trouble.

On June 16, 2015 at 11:33 AM Paul Neumiller <pneumiller at hotmail.com> wrote:

I represent a LL where the T is arguing that mold/mildew in 900 sq. ft. house has caused T’s daughter’s respiratory illness and “contaminated” all of T’s possessions in the unit.  T hasn’t paid rent in 2 months and loudly demands that LL clean up unit and clean/replace all of T’s possessions (“or I’ll see you in court.  My ex-husband is very very rich”).  There were black spots when the T pulled up the rugs  (mold/animal urine?).  LL has evidence and proof that T was a chain smoker, had multiple long haired animals in the house (and urinating in the house) AND T constantly had blankets and quilts hung over the windows of the house.  In other words, the house was kept closed up tight (on wet Whidbey Island) with multiple people living there and taking showers.

LL wants them out and gone but needs to be in the best position if T can make good on T’s promise to sue.   T refuses to remove anything from the house because T demands that LL clean/replace everything.   It is a month-to-month lease.  LL has already taken multiple photographs and video of inside condition of house and heard from neighbors about the stench of cigarette smoke coming from the house.  Since LL has time before the deadline for a combined 3, 10, and 20 day notice, I plan to send to T a letter giving T the chance to move out of the house and remove all of T’s possessions.   Any suggestions before I bring the standard unlawful detainer action? 

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Scott G. Thomas
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