[WSBARP] Mold in Rental Unit

Wed Jun 17 07:34:04 PDT 2015

A couple of years ago I had a bench trial involving mold where I
represented a landlord in a residential eviction.  Also have had numerous
cases over the decades where residential tenants will raise mold as a
defense to nonpayment of rent.  Usually can work out the issue.  I usually
press them to explain to me why they are fighting so hard to live in a
place where it is “uninhabitable" according to the tenant.  A little
disingenuous for them to argue that to the court.

I always point out the fact that the state Department of Health has a
handout for mold which clearly states that mold is common and is in every
residence.  In other words, it's not as big a deal as it is on the Internet
and urban legend.
http://www.doh.wa.gov/CommunityandEnvironment/Contaminants/Mold

If you ever do have one of these case then you really need to bring in very
early a certified industrial hygienist (expensive) who has the appropriate
national certifications and runs proper testing.  As opposed to the $29.95
test that the tenants run themselves that they get from Home Depot.  All
kinds of testing biases and other testing issues that come up with these
tests.  Tenants routinely think that these tests are a slam-dunk.

When I first started practicing over 21 years ago I remember that “mold
litigation” was supposed to be the great new tort and all landlords were
going to get bankrupted over the claims.  I have yet to see one of these
claims ever get any traction in the courts (at least in Eastern
Washington-can't speak for the Westside).  I have yet to see a healthcare
provider that is willing to give causation.

Please note that effective May 15, 2015, my new address is 7 South Howard
St., Suite 218, Spokane, WA 99201.  All other contact information remains
the same.

*Robert R. Rowley* | Attorney at Law

7 S. Howard St, Suite 218

Spokane, WA  99201

Telephone: (509) 252-5074

Mobile: (509) 994-1143

Facsimile: (509) 928-3084

Email: rob at rowleylegal.com

Web Site: www.rowleylegal.com

Practice concentrated on business, real estate and general legal matters in
Washington and Idaho.

<https://www.facebook.com/rowleylegal>
<https://www.linkedin.com/pub/rob-rowley/11/172/b20>
<https://twitter.com/ROBERTRROWLEY>
<http://www.yelp.com/biz/robert-r-rowley-spokane>

NOTICE: The contents of this message and any attachments may be protected
by the attorney-client privilege, work product doctrine or other applicable
protections.  If you are not the intended recipient or have received this
message in error, please notify the sender and promptly delete the
message.  Thank you for your assistance.

DISCLAIMER: You should recognize that responses provided by e-mail means
are akin to ordinary telephone or face-to-face conversations and do not
reflect the level of factual or legal inquiry or analysis which would be
applied in the case of a formal legal opinion. A formal opinion may very
well reach a different conclusion.

*From:* wsbarp-bounces at lists.wsbarppt.com [mailto:
wsbarp-bounces at lists.wsbarppt.com] *On Behalf Of *Howard Herman
*Sent:* Wednesday, June 17, 2015 12:17 AM
*To:* 'scott scottgthomaslaw.com'; 'WSBA Real Property Listserv'
*Subject:* Re: [WSBARP] Mold in Rental Unit

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 <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?

_______________________________________________
WSBARP mailing list
WSBARP at lists.wsbarppt.com
http://mailman.fsr.com/mailman/listinfo/wsbarp

Scott G. Thomas
Law Office of Scott G. Thomas
1204 Cleveland Avenue
Mount Vernon, WA 98273
(360) 503-1042
www.scottgthomaslaw.com

Because this is a communication from a lawyer, it necessarily contains
warnings such as this. I am a lawyer, but unless we have entered into an
agreement for legal services, I am not your lawyer. And, if this message
was intended for someone else but you have inadvertently received it, I ask
that you delete the message and let me know you received it so that I can
take steps to make sure you do not receive messages in the future. Thank
you.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20150617/a6af711d/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 20360 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20150617/a6af711d/image001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.gif
Type: image/gif
Size: 1317 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20150617/a6af711d/image003.gif>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.gif
Type: image/gif
Size: 1295 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20150617/a6af711d/image004.gif>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image005.gif
Type: image/gif
Size: 1351 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20150617/a6af711d/image005.gif>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 2555 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20150617/a6af711d/image002.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image007.jpg
Type: image/jpeg
Size: 939 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20150617/a6af711d/image007.jpg>