HOUSTON: WE HAVE A *POTENTIAL* MOLD PROBLEM

May 11, 2020

When is a Landlord liable for health hazardous mold in a leased premises?

With the unfortunate flood damage our state has suffered in the last decade, the issue of mold in properties has become a highly controversial and heavily litigated matter. The ranges of types of mold, and whether they are dangerous if present in the leased premises greatly vary. One of the important takeaways from this blog is to hire a certified moisture and mold specialist to run a test at your property to definitively determine if there is mold in the unit, and whether the mold poses a risk to your health. Basically, don’t cry mold until you are certain it is harmful. In the last week alone I received 3 calls related to mold issues, all from Tenants. Their stories varied in severity, but they all had one thing in common–the threshold question of whether a landlord is liable for mold in the leased premises, and what triggers landlord’s liability, if any? My goal here is to provide a brief outline on the somewhat gray law in Texas related to mold in a leased premises. 

As a general legal rule, a landlord is bound by an implied warranty of habitability. This means that the landlord is required to provide a dwelling that is in a livable condition. Unfortunately, for all parties involved, there is no federal or state law that is black and white on a landlord’s liability when it relates to hazardous mold in a leased premises. However, there are several other provisions in the Texas Property Code and prior case law that provide us with guidance on when a landlord’s liability is triggered in these situations. Communication between both parties is key. A healthy landlord and tenant relationship should always be the goal. Immediately upon notification of mold from a certified specialist, a tenant must notify the landlord of the issue, preferably by email if the lease provides for notifications via electronic communication, but in any case it must be in writing, and sent both regular and certified mail to ensure landlord’s receipt. I encourage tenants to provide the landlord with all documentation given to them by their mold and moisture specialist. Once a landlord receives notice from a tenant that there is hazardous mold present at the premises, a landlord’s best practice is to make commercially reasonable efforts to address the mold issue as soon as practicably possible. Once the landlord receives this communication, they are put on notice and must act as quickly as reasonably possible to address it. Tick tock, tick tock….

Once mold is confirmed, and landlord and tenant have 2 options to discuss with respect to payment of rent during the mold remediation period: (1) tenant does not pay rent until the mold issue is fully remediated by landlord, or (2) the tenant may undertake steps to have the mold issue remediated on their own dime and deduct the cost of remediation from rent. Two super common questions I am asked with my corresponding answers–(1) Does a landlord have to pay for a tenant’s hotel while the mold remediation service is being completed? No. (2) Can a tenant check in to a hotel and deduct the hotel expense from rent? No. In short, as long as the landlord is taking commercially reasonable steps to remediate the mold problem while allowing relief in rent and/or repaying tenant for remediation services they already paid out of pocket, the landlord will not be liable to tenant for damages. 

Now, let’s talk about the landlord who learns of the mold and does nothing about it, or knew about it all along and never notified Tenant. Yeah, that nightmare landlord. After notification and a reasonable time for landlord to cure, a tenant can bring suit against landlord and recover damages if they are not able to reach an amicable resolution on remediation plans. In order to recover damages in a legal proceeding, a tenant must prove that the landlord: (1) negligently created the mold problem, or (2) allowed it to continue after being put on notice. Proof of landlord being put on notice can be shown by providing copies of the return receipt from the certified mailer (best practice), email communication exchanges, or text message exchanges. Damages recoverable can include medical costs, attorney’s fees, court costs, and other provable damages depending on the severity of the case. 

Bottom line–the absolute best practice for all parties involved is to maintain communication with one another with the common goal of getting the mold issue eradicated as soon as possible. However, if an amicable resolution is not a possibility, please reach out to my firm to help guide you through the process. Wilder McGee, P.C. has a wide array of experience in handling landlord and tenant disputes of all types.

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