Because of the confusion surrounding the issue of toxic mold, it is difficult to obtain knowledgeable and reliable legal assistance. As yet, there is no official federal “mold law,” which creates obstacles when trying to recoup losses. This is changing, however, as awareness grows.
Toxic Mold and the Law
When evaluating a course of action, it is always wise to count the costs before proceeding. Legal action can be costly not only in terms of your finances, but it can also impede your recovery due to the added stress. However, there have been numerous successful lawsuits ranging from disability claims to tenant rights to damages awarded for improper mold remediation.
Who to Sue?
If you have been injured by toxic mold, your first step is to identify the party or parties that may be liable. This of course depends on whether you own or rent, or whether the injury occurred in a public building such as a school or workplace.
When You Own
According to the consumer-friendly website Nolo.com, if you own the building, the following parties may be liable depending on the circumstance. (There is no need to choose; you can include all parties who may be responsible for the mold issue.)
The following is adapted from Nolo’s article Who to Sue for Toxic Mold.
- Homeowners’ insurance. In most cases, your first stop should be your homeowners’ insurance policy. Whether your policy covers your type of mold infestation will depend on what the policy says. You’ll need to read the policy carefully to find out what it covers and what it specifically excludes from coverage.
- Perils covered. Coverage may specifically include certain types of “peril,” meaning specific bad events such as a fire or a roof leak. If the cause of your mold infestation is a covered peril, you may be in luck. For example, if the cause of the mold infestation is a leaky roof, and roof leaks are one of the perils listed in your policy, then the insurance company is probably obligated to cover the cost of mold remediation.
- Exclusions. Most homeowners’ policies also have a list of “exclusions,” meaning bad things that are not covered by the policy. These typically include things like termite damage or mold infestations that develop over time.
In dealing with your insurer, you have at least one ace in your hand. Insurance companies are bound by a legal doctrine called the “covenant of good faith and fair dealing,” meaning that, in dealing with a policy-holder, the insurance company is held to a heightened standard of conduct.
In practical terms, this means that if your insurance company drags its feet, tries to trick you or wriggle out of the terms of your homeowners’ policy, or otherwise plays fast and loose with you, you may have an additional legal claim against it for violation of the covenant of good faith and fair dealing.
- Builder or Contractor. If the mold infestation is the result of shoddy construction or materials or a failure to install proper ventilation, you may have a legal claim against the builder, general contractor, or one or more subcontractors for negligence (the failure to be reasonably careful). Some states require builders or contractors to guarantee their work in the form of warranty; you may be able to claim that the builder or contractor violated or “breached” such a warranty.
- Architect or engineer. If the mold infestation is the result of poor architecture or engineering, such as a failure to include proper ventilation in the design of the home, you may have a claim against the architect or structural engineer for negligence. Some states require architects or engineers to guarantee their work in the form of warranty; you may also be able to claim that the architect or engineer breached that warranty.
- Construction supplier. If you can show that the mold infestation in your home was “imported” into it by way of moldy construction materials such as siding or drywall, you may have a claim against the commercial supplier of the mold-infested materials.
- Prior owner. Most states require the seller of a home to disclose any known problems such as the presence of a mold infestation. If the prior owner knew of the presence of mold but did not tell you when you bought your home, the owner may be liable to you for violating these disclosure laws.
- Realtor. The seller’s realtor (who is an agent of the seller) may also be liable for selling you a home with a mold infestation.
- Property inspector. If you hired a property inspector to inspect your home before you bought it, the inspection company may be liable to you if it missed a mold infestation. You will need to carefully review the property report you were given, especially the language at the beginning regarding the scope of the inspection and any disclaimers.
- Condominium association. Because of the special status of owners in a condominium complex, the condo association may be on the hook for a mold infestation, especially if it occurs in a common area.
When You Rent
Under the landlord-tenant laws of most states, landlords are subject to a legal doctrine called the “implied warranty of habitability,” which makes the landlord responsible for keeping the rental property free of health hazards such as a mold infestation.
Because the implied warranty of habitability is an obligation imposed by state law — whether the landlord likes it or not — it overrides any language in your lease that is inconsistent with that responsibility. So be skeptical and persistent if your landlord denies responsibility for a mold infestation under the terms of your lease.
If your landlord is dragging his or her feet, you may be able to get action by contacting your local housing authority. If you are seeking compensation for an injury or damage to your personal property, however, you will likely need to take legal action.
You may also be able to file a constructive eviction claim. Learn more here.
Can I Sue a Mold Remediator?
Sometimes a mold situation is aggravated by poor mold remediation. Again, due to the lack of federal standards, it is difficult to pursue legal action against a remediator. However, some states do have certification and remediation laws. The following is adapted from The Policy Surveillance Program, a visionary project designed to provide information about laws and policies that influence the public’s health.
As of January 1, 2016, the following eleven states have mold remediation statutes:
- Florida
- Illinois
- Kentucky
- Louisiana
- Maryland
- Maine
- New Hampshire
- New York
- Oklahoma
- Tennessee
- Texas
Also, four states have laws that establish civil penalties for failure to comply with mold laws:
- Kentucky
- Louisiana
- New York
- Texas
Florida, Louisiana, and New Hampshire are the only three states that have laws or will have laws that establish criminal penalties for failure to comply with mold laws.
Texas requires photographic evidence to prove that the mold remediation was properly conducted.
Four states require that mold workers receive training in proper procedure for mold remediation:
- Louisiana
- New York
- Tennessee
- Texas
Locating a Lawyer
Because of the complexities surrounding toxic mold exposure, it is best to find an experienced personal injury attorney familiar with mold litigation. This, of course, is a difficult challenge given the lack of federal guidelines. Nolo.com offers a unique lawyer directory with a state-by-state search feature providing information about the attorney’s philosophy, fees, and experience.
In February 2017 the Mold Firm in Atlanta was launched with the sole focus of toxic mold and construction defect litigation. Learn more here.
Kristina Baehr and her family suffered a serious mold exposure and as a result she is using her skills as a lawyer to advocate for the mold-injured. Learn more about Just Well Law here.
Always weigh your options carefully when pursuing legal action. The lack of government regulation can make this an uphill battle. However, resources like these can help as you determine your wisest course of action.
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Thank you for all of your information and guidance. I am living the Toxic mold hell. We bought what we thought was our dream home. It was a foreclosure but it was a beautiful Toll Brothers home. We worked hard cleaning the home and making it our own. Our youngest daughter became sick and her illness continued to get worse. We finally took her to a physician who specializes in difficult cases who diagnosed her with CIRS. We did not believe that it was our home until a neighbor said that the previous owners were really ill with migraines. Later we discovered that the builder bricked over the dryer vent and the moist air ran in the wall for 5 years. Toll did hire a mold remediation company to come in and clean it up but they did a poor job and did not address the wall that had the issue. We had mold testing done and it was deemed unsafe to live in. We hired a company to come out and they confirmed that the house was unsafe and they concurred with the mold sampling that we had done. We are currently in temporary housing and my daughter is so ill that she is on medical leave from school. She has a severe migraine every day accompanied by nausea, body aches, dizziness, joint pain and brain fog. She has been hospitalized twice and tried on every migraine medication on the market. Toll brothers is refusing to pay anything to help us clean up the mold in our home and watching my child suffer like this is horrific.
Thank you for sharing information about mold. This is a horrible toxin that robs lives! Legal action is difficult because companies like toll have really deep pockets and the industry has no regulations that require proper mandated clean up.
Thank you again
Cathy
I did not make it clear that Toll Brothers had a company come in when the previous owners were living in the house. They were all sick. He had lost his job and its my guess that it was because he was too sick to work.
Cathy,
You might want to try to obtain the names of the previous owners. Their testimony may help strengthen your case. You should be able to find out this information through the Clerk of the Court in your county. They should have records with the names since the house went through foreclosure; many records are searchable online now as well. Good luck to you and your family. I know first hand how devastating mold illness can be and had many symptoms just like your daughter.
Thank you for sharing your story, Cathy. I’m so sorry to hear all of this. If I can ever offer support please let me know.
I am not in a financial situation to get a professional in. It does not look like this is covered in my insurance. I have renter’s. I have symptoms. The air is not good. We are to move by the end of the month . But I want as much proof and documentation that I can have. We are moving because I work out of the home and the association and landlord are sited by the city to repair the water damage. The roofer, landlord’s claim adjuster, and the city inspection “have seen evidence of mold” but there is considerable water damage for a length of time. I am renting with 2 hole in the ceiling! If you have any additional information that would be great!
As I mention in the article, Marcia it’s a bit of an uphill battle due to the lack of knowledge. At least you understand the connection which is critical for your own health. Feel free to email me directly andrea@it-takes-time.com.
I had no idea that toxic mold poisoning could be a reason to take legal action. My husband and I have been seeing mold in our basement ever since we started renting our house. We haven’t bothered our landlord with it, because we just clean it ourselves. If it does happen to be black mold, who would be held accountable in this situation? I’ve been noticing some of the symptoms, so I’m planning on having the basement tested soon.
The law is rather complicated with mold, but getting it tested is a good next step. Dust sampling is preferable to air sampling with something like this and more affordable.
I have an outdoor mold issue. Our neighbor has an uncovered broken above ground pool that is filled with rainwater debris and mold. The odor is overwhelming and brings on immediate headache and respiratory problems. Local officials are of no help. There is no ordinance nor violation for not maintaining a pool. The health department indicates it is out of their jurisdiction. Looking for assistance on where to turn for help. The pool has been broken for 4 years and our heath deteriorates
Oh, that is so tough, Vickie! I wish I had more resources for you on this one. If something comes to mind I will let you know.
We have a double wide purchased in 2003. We paid extra for osb flooring. In 2014 we had several water leaks. Insurance paid. Both, the floor guy, and the contractor pointed out that we had particle board subfloors and not osb.
The insurance also had us poke holes in the underbelly.
We had the underbelly repaired, several times. We even did so ourselves.
Now our floors have buckled from one end to the other.
The underbelly came apart again and the duct work condesated causing the floors to swell.
Insurance was called and sent and inspector out. The ruling was damage caused by prior existing damage not properly fixed.
Now we r concerned about mold and how exactly to fix it all since i am a stay at home mom and my husband is the only one working.
We definitely do not have thousands to fix this. And we have 2 children.
Dont have a clue where to even begin.
I feel we were cheated out of money by the home builders, caviler, and i feel like we paid for the underbelly repair and even fixed it ourselves repeatedly. With the recommended equipment for the type of poly underbelly we have.
Do we have any legal rights from the sounds of this?
I’m not sure on this. How is the family’s health? Your health is of utmost importance. You can also test the home to see if there is a mold problem.
I’m trying to identify the species of mold I’ve discovered in my rental home and figure out my best option legally because my landlord refuses to let me break my lease all while claiming he doesn’t have the money to fix any issues. The mold– It’s everywhere–the ceilings are particularly bad and it seems as if my roof is about to cave in. The AC handler inside my home is covered in mold and after testing the air blowing out of my Ac ducts I’ve confirmed there’s mold growing inside of the unit as well. I bought these mold kits and will be sending them off to a lab for testing, but I’m not sure how long the results will take to get back and my landlord said they are not reliable. I’m particularly worried because I live in this home with my 5 year old daughter and don’t want her exposed to anything toxic. I myself have experienced many health problems since living in this house beginning with constant sinus infections, severe eye allergies that cannot be controlled (leading to allergic conjunctivitis) inability to gain weight, as well as a rash that’s spread from my back to my stomach and just began spreading over my shoulders and down my arm. As of recently my lungs feel like they’re closing and I get painful sensations in my chest and rib cage. My daughter fainted a little over a month ago and complains of stomach pain and constant diarrhea. I am currently being tested and the center for infectious diseases for all things mold related but am waiting on results. I am contacting you because I am a single mother who just graduated college and cannot afford to break my lease without my landlord agreeing as he says im required to pay his own attorney fees 8 can’t even afford an attorney myself. I know this house is a health hazard and am trying to move out immediately–I took photos of the mold samples and before I send them off I was hoping you might be able to help identify if it looks like a species that I can easily transfer to a new home if I bring my belongings, or any legal advice you have so help save my daughter and I from this toxic nightmare. I would appreciate any advice. Thank you in advance.
It sounds like you’re on the right track with this. You may want to stay with friends or family until you figure this out. Put your health above all else as you navigate this very difficult road. Feel free to email me directly andrea@it-takes-time.com
Andrea,
I just finished listening to your audio “Behind the Scenes: Mold Questions” 12/09/2017. There is just note enough time for me to go into enough detail concerning my situations (and yet, I may ramble and type a lot, but, I hope to not).
I first began getting sick in 2014. In fact, I thought I had lung cancer and would soon be departing, and began making plans for my demise, as I did not want to financially burden my family.
I worked in a library and we were all unaware of what i call an egregious amount of mold contained with the books. My employer kept referring to it as “a little mold”. But, it absolutely was not “a little mold”.
I ended up being relocated three times from my location. After the third location, I was upset … with everyone … including myself. I was mold ignorant, as was my employer. I educated myself; I do not think my employer has.
After my last relocation, I discovered I had packed Aspergillus into my home. With the other two location, I would recover. After the third location, I did not improve and I was so worried I had developed a fungal disease, but, I got up and searched my own home. I had my home inspected. I’m a creature of habit and I could tell that the location of the mold was only in areas where I wore my work clothes before changing for the evening.
I did not tell the mold investigator my theory. Upon his completion of inspecting my house, he talked about how I would have a tough time getting my home owners insurance to pay the cost of remediation because the mold did not present in a normal fashion. The areas of infestation were not related to any water damage, but, appeared as if someone had walked into my home and planted it in these locations (I do not have a heat pump, so the Aspergillus spores did not spread from room to room — a blessing in disguise?)
I did not accuse my employer of causing me to have a home mold problem, but I asked to have my schedule modified in order that I could have time to clean my home. I most certainly could not afford to pay for it and I doubted my employer would comply if I requested for them to cover the cost. This is when my employer hired themselves an attorney and, I felt, they had just become insensitive AND cruel. I was denied the ability to modify my schedule and was told that if I did not work five days a week for forty hours, I would have my health benefits revoked.
Stress — stress — stress ——- on many, many fronts. And, all while I am smothering … inside my own home.
During your audio, I heard from you words and actions that I have been through, such as “dismissed”. I kept raging at everyone for dismissing my fears and my problems. I was paranoid to be in my home. Even as I was aware that I was obsessive, I could not stop myself.
I have been dealing with this problem since 2014. I have spoken to many people. In the beginning, I cursed out federal officials, state officials, attorneys, doctors, my husband, and, while I never cursed at my employer, my irritation and demanding nature cost me my job. I was told, “we have accommodated you enough; you have already cost us too much money”. The last statement is because I demanded they follow Ky Mold Regulations as if we were a public school, because, we are a public library. The building evaluation was grim in that it will take years to alleviate the water damage from this old building, but, this institution does have the funds to do so. It most certainly is not my fault the building has problems.
I have been through the trauma and I am still dealing with cleaning my home. I had to triage my home and make choices on what areas to clean, what areas could I put up barriers. My husband and I are dealing with it.
In some ways, this has been a good thing, in that, I have experimented with cleaning processes: taking an item from a room I have labeled “the toxic room” (most egregious and most difficult to clean), cleaned the item, put the cleaned item into a damp room, then wait to see how the mold grows (because you never completely clean spores — I need to know just how well it can be cleaned.
I read your “10 things I learned the hard way” and that is a pretty good list. I, too, have learned to take this all one step at a time. I also have told anyone who would listen, I do not have a straight forward list; it’s more like a flow chart, because, I am still learning things as I go.
My family was worried about my obsession: cleaning, looking at things with a flashlight and magnifying glass, endlessly researching and looking for valid information, and the endless talking and talking and talking about mold related matters.
I am now on the step where i am trying to find an attorney to see if I can recover any of the damages from my situation. I have had to throw many costly items, and many emotional items, away. I have had to learn to let go of my past and be fine with it. It’s almost like a house fire in some ways.
I am in talks with the Department of Public Health and Safety AND the Attorney General. My intent is that all public libraries be mandated to have a mold policy in place and that this policy be enforced. The largest problem I encountered was just ignorance on the matter.
As time passes, I understand more and more about mold related matters. It is not necessary for people to run screaming into the night concerning mold. It should not be necessary for employers to hire lawyers to fight an employee who is scared to death she may stop breathing if she gets no relief from spores irritating her lung tissue.
I do not know that I have a question for you, but, I feel I am on a crusade to educate others.
I do not know if this “crusade” is a part of my “mold obsession”, and, even if it is. I do not want to falter on this matter. I want to keep putting one foot in front of the other.
In the beginning I cursed at these two state agencies (2015), then I cried and screamed and ranted (2016), finally I had an educated discussion (early 2017) and told them I was done with the whole affair. By mid-summer, they called me.
I have no clue where all this will lead — no clue at all. This experience has taught me that I have little control over outcomes, however, that should not stop my persistence — come what may.
I have no public forum such as you have, but I am gaining a reputation among my small community as the person to call if you want to discuss your mold problem in your home. I tell them I am not an expert, but I do listen, and I do look at their situation, and based on their experiences and health and income, I tell them what I feel would be best for approaching their problem — what they can reasonably do to abate the problem. (and, I’m discovering that I can see symptoms in people, even if they deny it, and, once they take care of their problems, their symptoms will abate, and generally, they come back to tell me, they had no idea that they could feel so much better, just by erasing the mold from their home)
Thanks for the opportunity to share.
Irene, I appreciate taking the time to share. What a journey for you and your family. This will help others.
Hello, we bought a brand new condo three months ago in San Francisco. We are now finding mold in two closets; one being located in our bedroom, right near our bed. A number of residents facing the same outside wall are experiencing similar issues. We immediately emptied all closets, sorted all our clothes out, to isolate contaminated pieces of clothes.
Upon finding out, we reached to the builder and neighbor to alert them. Quickly enough, two other residents (whose units are stacked above and below) responded positively as they found mold too.
The building came twice already to ‘investigate’ but they seem to be slow to put a comprehensive plan together. Naturally they are reluctant to engage into major work (tearing built-in cabinets, removing carpet etc), they now talk about a deficient ventilation system as a potential root cause. They come every other day, check in and leave.
We leave in California and mold seems to be ranking as one of the highest health hazard.
Any advise as to how approach and have the builder (we are all under the limited, one-year warranty) move faster, and achieve a comprehensive investigation/assessment, remediation and ensure our units will become free of mold in the near and long term. The last thing we want is to deal with the issue once the builder is gone, and we are left with the HOA and our homeowners insurance, which most likely does not cover mold related issues.
Thank you.
Sounds like you caught this early. Sounds like you’re doing everything you can. If I think of something you might be missing I will let you know.
I work in a school with mold that has permeated through everything in my class room. Chairs, flags, uniforms, desk are all covered with mold. What cn i do to make sure I am compensated for working in such conditions. The school district knows about the problem, but chooses to do nothing. Please help.
So sorry to hear this. My only suggestion is to make your health a priority and do whatever it takes to remove yourself from this room if the school refuses to take action.