In the latest Weekly Wright Report:
A Review of Virginia Law on Mold Issues in Residential Leases
By Thomas Moran
Mold. Even the word is pretty gross-sounding. Mold can be costly and difficult to remediate. It can cause a number of significant health problems, be unsightly to look at, and unpleasant to smell. Nobody wants to deal with mold in their property, whether they’re living in it or renting it out to a tenant. But when it appears, deal with it you must. The Virginia Assembly has issued a number of statutes addressing mold and the various duties of the tenant and landlord.
The landlord’s duties start on move-in. A landlord must disclose to the tenant whether there is any visible evidence of mold in the interior of the property. The tenant has five days after the disclosure to object. Failure to object can be a basis to bar the tenant’s argument in later litigation that mold was present at move-in. If the disclosure states that mold is present, the tenant has the option of either (1) terminating the tenancy, or (2) take possession on the condition that the landlord remediate the mold issue, reinspect the property, and provide a new report certifying the lack of visible mold, all within five days of the tenant’s decision.
The tenant has a responsibility to occupy the property in such a way as not to encourage mold growth. Particularly, the tenant must use “reasonable efforts” to maintain the premises to prevent moisture accumulation which can serve to encourage mold growth. A tenant must “promptly notify” the landlord not only of visible evidence of mold, but also any moisture accumulation that occurs.
A landlord’s duty to provide a mold-free rental property continuous over the life of the tenancy, subject to the tenant’s duty to notify. Similar to the tenant’s duty, the landlord also has a duty to maintain the premises so as to prevent the accumulation of moisture and mold development. In a typical landlord/tenant relationship, the landlord will be responsible to make sure there is no structural problem, such as a leaky roof, that leads to excess moisture, while a tenant should avoid allowing excessive humidity to build up via proper ventilation and keeping faucets off when not in use.
When a tenant encounters visible mold, Virginia Code § 8.01-226.12 is triggered. Upon receiving notice, the landlord must exercise “ordinary care” and perform mold remediation in accordance with professional standards. A tenant unsatisfied that proper remediation measures are being taken may submit a notice that if the problem is not remedied within 21 days, the lease will terminate in 30 days from the date of the notice. Should the landlord continue to fail to remedy the problem, the tenant may file a “tenant’s assertion” in General District Court. Depending on the circumstances, the tenant may be entitled to recover actual damages, a court order compelling remediation, and/or attorneys’ fees, costs and expenses.
The effects of mold infestation can be dire. Virginia has established a set of exacting standards for tenants and landlords to address this important public safety issue. If you are a tenant or landlord in Virginia concerned about your rights and obligations with respect to a potential mold problem, please contact Tom Moran at (804) 362-9434, or email@example.com.