I was exposed to mold, is it time to lawyer up?
Before calling your local attorney who’s name is plastered on every billboard in sight, there are several important things to consider. The first is your lease agreement and local laws. Most leases are written in a way to protect the landlord from being sued from a resulting mold loss.
In some cases the tenant may actually be responsible for the mold if it developed out of negligence. An example of this would be a leaking faucet or shut off valve that was not addressed or reported to the landlord in a timely manner. Tenants are the eyes and ears for landlords. Unless a tenant makes the landlord or property manager aware of a water leak or problem in the home, it cannot be addressed.
Mold is not something that develops overnight. It develops at different rates and time intervals; some within a 24 to 72 hour while others could take two weeks or more. Since it develops over time, tenants may be able to prevent it from developing if they are aware of the problem. Its important to keep this in mind and tenants should be regularly checking for leaks under their sinks, faucets, toilets, showers / bath tubs, appliances, etc. While this may seem time consuming or tedious, its important to take measure to protect yourself from possible being held responsible.
Water leaks should be reported right away, preferably in an email or certified letter so you have it in writing. Failure to report a leak can result in a tenant being held responsible for the cost to remediate mold. In addition, a lot of renters insurance policies may not protect a tenant if this were to happen. Not only if they do not have coverage for mold, but many policies do not protect the tenant in the event damage is caused to the property they are living in. This would make the tenant fully responsible for the costs to repair the property.
Another point to consider is the costs involved in hiring an attorney. Some may offer a flat rate while others charge by the hour. Its important to realize that attorneys are not cheap. While you may get a large settlement, after medical expenses to document the impact mold could have had on your body, other legal fees that may have accumulated, the attorney will usually take anywhere between 30-50% off the total settlement costs. Often times this will leave a tenant with very little money.
Finally, it can be very difficult to prove the impact mold may have had on you and whether or not the landlord was negligent. Most doctors will not sign off stating that the side-effects you are expiring are from mold since it often times it resembles an allergic reaction. This makes it difficult for them to determine with a high level of certainty that your symptoms are from mold and not another source. While certain tests can be performed that would increase their certainty, these are often very expensive and may not prove beneficial in the end. If your settlement doesn’t produce enough money to cover all the expenses involved, you may end up having to come out of pocket for those expenses or end up with nothing in the end.
Negligence can also be difficult to prove. Local laws do very and depending on where you live, it may be easier to prove negligence than other areas. Its often hard to prove negligence unless the landlord ignored the problem or did not handle it properly after receiving written notice of the problem. To clarify, if the landlord or property manager has made an attempt to resolve the problem by contacting the appropriate parties and are now waiting for those parties to respond, this most likely is not negligence. There are a lot of factors that need to be taken into consideration and often times a tenant may not have all the information they need especially the steps a landlord may have taken done behind the scenes.
To make a lawsuit worthwhile, four things should exist before a tenant files suit:
1. You are exposed to high levels of mold which a doctor can pinpoint as the cause of your symptoms
2. It can be proved that the landlord was made aware of the problem in advance
3. You notified the landlord or property manager in writing when you were first made aware of the problem
4. The property owner did not respond timely to the problem resulting in prolonged exposure to hazardous mold
Unless these elements exist, it is most likely not in the tenants interest to file a law suit against the landlord, especially if a judge determines that the owner or property manager were not negligent or that the tenant is responsible for the repairs because they can then counter sue the tenant for a wrongful lawsuit.
Disclaimer: Before making a decision whether or not to file a law suit, it is always advised to seek the professional opinion of an attorney.
August 28, 2013