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:
- New Hampshire
- New York
Also, four states have laws that establish civil penalties for failure to comply with mold laws:
- New York
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:
- New York
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.
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.