Category: Risk Management

Almost a decade ago the General Assembly enacted legislation requiring landlords to remediate visible evidence of molds.  More importantly, the same duty was imposed upon property managers who assumed maintenance responsibilities. This was a complete departure from Virginia law which prevented tenants from maintaining civil actions against a real estate licensee who acted exclusively on behalf of the landlord.

 

Earlier this month, the Virginia Supreme Court reviewed a decision from the Newport News Circuit Court in which the trial judge concluded that the enactment of this statute was intended to abrogate personal injury claims based upon negligent maintenance or remediation.  I represented the landlord and property manager in this case and regrettably, the Virginia Supreme Court disagreed with the Trial Court’s legal conclusions, reversed the decision and returned the case to Newport News for further proceedings.

 

Also disappointing was the Supreme Court’s failure to address the extent to which mold remediation is required.  The statute, as well as the Virginia Residential Landlord Tenant Act (“VRLTA”), defines visible mold as “the existence of mold in the dwelling unit that is visible to the naked eye by the landlord or tenant in areas within the interior of the dwelling unit readily accessible at the time of the move-in inspection.”  I argued that because the molds accumulated months after the tenancy began, there was no duty to remediate as the molds were not visible at the time of the move-in inspection.  This issue is now back before the Trial Court, but it is my considered opinion that the statute is clear and unambiguous.  If the move-in report disclosed no visible evidence of mold, the duty to remediate stopped there.

 

While the duties and responsibilities continue to be addressed by Virginia tribunals, I offer the following recommendations to reduce the risks associated with mold.

 

• Give mold disclosures at the commencement of the lease, obtaining every tenants acknowledgement of receipt;
• If visible evidence of mold exists at move-in in readily accessible areas, “readily accessible” being defined as “areas within the interior of the dwelling unit available for observation at the time of the move-in inspection that do not require removal of materials, personal property, equipment or similar items”, postpone the tenants occupancy. The statue requires remediation in five (5) days, a practical impossibility.
• For molds that accumulate during the tenancy, although there is likely no statutory duty to remediate, the VRLTA requires premises to be maintained in a fit and habitable condition. Fortunately, for VRLTA violations, personal injury damages are not recoverable;
• In the remediation of molds, engage certified mold remediation contractors to ensure compliance with the requirement that the remediation is performed “in accordance with professional standards.” Virginia law does not entitle a tenant to recover damages caused by the negligence of an independent contractor;
• If a tenant reports mold accumulations, explore whether any occupant believes exposure to mold may have adverse health effects. If the tenant answers affirmatively or is uncertain, offer to terminate the lease, with owner approval, or relocate immediately;
• Negligence claims arise principally as a result of the failure to properly repair the source of water leaks and the failure to follow proper protocols in the remediation of mold. When a tenant communicates a service request for any condition that could lead to moisture or water conditions, give these special attention;
• Review property management agreements to ensure that the Owner is responsible for maintaining the premises in accordance with laws, regulations and local ordinances. DO NOT agree to except primary responsibility for maintenance, reserving only the right to effectuate emergency repairs;

 

• Most importantly, contact your commercial general liability and errors and omissions liability carriers to ensure that there is coverage for mold claims. Too often I find clients who are uninsured because of fungus, mold or pollution exclusions.

 

The issues related to mold remediation present a legal quagmire, particularly when Virginia courts have yet to definitively rule on what duties are owed by landlords and property managers.  Consult with your legal counsel when you have questions regarding the proper course of action.

 

Herbert V. Kelly, Jr.| Jones, Blechman, Woltz & Kelly, P.C.

701 Town Center Drive, Suite 800, Newport News, VA 23606 | Direct 757.873.8149 | Fax: 757.873.8103

bkelly@jbwk.com | www.jbwk.com