When Mold and Mildew Make for Uninhabitable Homes

Recent news reports have investigated cases of children suffering severe bouts of asthma at home. The outbreaks are often caused by mold or mildew that arises when the landlord or property management company fails to maintain a certain standard of cleanliness, making it “unhabitable." This is not an issue of the tenants themselves failing to clean the homes, but of building-wide mold which is the responsibility of the landlord. To ensure that your family doesn't suffer the same fate as some of these tenants, we'll give you a quick summary of some of the law and recent cases in mold infestations within rental agreements.

When a House Is Not a Home

In landlord-tenant law, the “warrant of habitability" refers to the legal obligation of a landlord to provide a rental unit that is safe, sanitary, and fit for human habitation. This means that the unit must meet certain basic standards. For example, the unit must be structurally sound and clean; it must be free from hazards such as mold, pests, or inadequate wiring. If a landlord fails to maintain a rental unit in a habitable condition, the tenant may have several legal remedies available to them.

To ensure that their rental units meet the standards of habitability, landlords should regularly inspect their properties for any problems and make repairs promptly. They should also be aware of the local housing codes and take steps to ensure that their units comply with these codes.

Tenants should also be aware of their rights to habitable housing. If they believe that their rental unit is not habitable, they should first try to resolve the issue with their landlord directly. If they are unable to resolve the issue with their landlord, they may want to consider consulting with an attorney or filing a complaint with their local housing authority.

Remedies for Breaching the Warrant of Habitability

In a case that went up before the Alaska Supreme Court earlier this year, the tenant renting an apartment alleged that the landlord failed to maintain a “fit" premise to live in because the landlord allowed excessive mold to accumulate in the unit. The tenant claimed that about a year after moving in, she started experiencing significant medical issues including allergic reactions and asthma. She was hospitalized several times while living there. The jury found for the tenant, agreeing that the landlord breached their duty to keep the place in a “fit and habitable condition," awarding the tenant $7,325 in damages, including $5,835 for “Discomfort, Annoyance, Inconvenience, and Mental Distress."

Sometimes, the breach of habitability won't result in a total reclamation of rent money, but a partial recouperation, known as an “abatement." Take, for example, a 2019 case from the Bronx, where the landlord sued the tenant trying to recover possession of the apartment because the tenant failed to pay rent even past the due date. The tenant's legal defense was that the landlord had kept such poor conditions in the apartment (including water leaking, rotting, mildew, and mold) that her personal belongings were damaged, she couldn't have people over, and her asthma worsened when living there (and improved upon moving out).

Due to these conditions, the court awarded the tenant a 20% abatement of rent for the period of time that the property was uninhabitable. Rent abatement is a temporary reduction or suspension of rent payments that a tenant may be entitled to if their rental unit is not habitable due to repairs or other issues. This means that the tenant is not obligated to pay the full rent amount until the landlord has made the necessary repairs to bring the unit up to habitable standards. The amount of rent abatement that a tenant is entitled to will depend on the specific circumstances of the situation. In some cases, the tenant may be entitled to a full abatement, meaning that they do not have to pay any rent at all. In other cases, the tenant may only be entitled to a partial abatement, meaning that they have to pay a reduced rent amount.

Constructive Eviction

You might be familiar with evictions: when your landlord gets a court order to kick you out and change your locks. It's terrible, but it isn't always so black and white and rubber-stamped as that. Sometimes, you may be forced to evict yourself because the place is just too unpleasant or even dangerous to stay in – what's known as a “constructive eviction."

Take an Illinois case from earlier this year: the tenants claimed that they encountered “persistent issues with mold and mildew in common areas," along with water leaks, rodents, and all kinds of other hazards. They claimed that as a result of the conditions on the property, they suffered several ailments, including breathing problems such as respiratory infections and asthma. The tenant argued that she was “constructively evicted" from part of the apartment because one of the bedrooms was so far gone as to not be habitable.

Constructive eviction is when a landlord's actions (or inaction, as is more often the case) significantly impair a tenant's ability to enjoy their rental property to such an extent that the tenant is effectively forced to vacate the premises. This could include a failure to repair something essential or could be a failure to address certain conditions like water damage or mold and mildew, as the case here.

Unlike traditional eviction, which involves a formal legal process, constructive eviction occurs without any court order or notice. It's basically the idea that even though you haven't been legally evicted from and locked out of your residence, you're put in the same position because you can't live there due to the conditions. If a tenant experiences this and tries to attempt to resolve it with the landlord but doesn't get anywhere within a reasonable time frame, they could have grounds to break the lease.

The court found that the property management company knew about the tenants' basic living needs and still leased them a house with mold and a mouse infestation. The court ruled that the failure to remediate the problems amounted to constructive eviction, and awarded damages to the tenants. It stated: “When a landlord tells a prospective tenant that leased property is safe, clean, and healthy, thereby inducing the prospective tenant to sign a lease, and the property has high levels of mold and a significant problem with mice, the landlord is liable for constructive eviction."

Whose Fault Is It?

Recent interviews with lawyers in D.C. nonprofits have revealed some of the current realities facing both tenants and landlords in these situations. In one case, according to their attorney, "the landlord did not know that there were repairs needed until the tenant filed a court case." After he found out, he allegedly to action to fix the situation by offering to either put her client in a hotel or settling the case. In some instances, there may be a lack of awareness.

In other cases, landlords may be playing a game. According to an attorney from the Children's Law Center in D.C., the risk of a fine is often a better deal for landlords than the cost of making repairs. Sometimes, she said, landlords want to push out low-income residents in order to redevelop the property and rent at higher rates. She says some landlords create fake “shell" companies, which make it harder to trace them down or sue them.

In any case, if you or anyone you know is facing a difficult landlord and reasoning with them doesn't work, it could be time to talk to a tenant's rights lawyer in your local area before you face more serious health or housing consequences.

Related Resources

• Tenant Eviction: What You Should Know as a Renter (FindLaw's Learn About the Law)
• What If My Apartment Building Gets a New Owner? (FindLaw's Law & Daily Life)
• The Legal Standard for Repairs: Warranty of Habitability (FindLaw's Learn About the Law)