MOLD ADDENDUM POWERS

Most managers are finally using some sort of Mold Addendum due to the problems related to mold and the press which mold has been getting as of late. The Mold Addendum often addresses the resident’s obligations to keep the premises mold free and the requirements on the resident in the event there is mold found on the premises. The problem with most mold addendums that are in use is that they really do not address what the manager can do with regard to the resident if mold is present on the premises, or if the manager needs the resident to vacate to rectify the mold problem. This problem can be solved simply by using a proper Mold Addendum or inserting some wording into the current addendum.

Educating the Resident

While we in no way wish to put ideas into a resident’s head that there may be mold on the premises, it is important to give the resident some information about the dangers of mold. Here is a sample clause which can be used. This can give the resident a basic understanding of mold and the potential dangers.

MOLD: Mold consists of naturally occurring microscopic organisms which reproduce by spores. Mold breaks down and feeds on organic matter in the environment. The mold spores spread through the air, and the combination of excessive moisture and organic matter allows for mold growth. Not all, but certain types and amounts of mold, can lead to adverse health effects and/or allergic reactions. Not all mold is readily visible, but when it is, can often be seen in the form of discoloration, ranging from white to orange and from green to brown and black, and often there is a musty odor present. Reducing moisture and proper housekeeping significantly reduces the chance of mold and mold growth

Mold and the Landlord/Tenant Act

Nowhere in the Landlord/Tenant Act is mold mentioned. Can a resident break a lease because of mold? Does the manager have to remove the mold for the resident? Can the resident withhold rent due to the mold? Suppose the resident’s actions or inactions cause the mold problem? Can we simply terminate the tenancy because of the mold? These are tough questions in an incredibly grey area.

The Resident’s Responsibilities

In a perfect word, the resident would do everything they could to live in a mold free environment, but we cannot force a resident to keep the air conditioning on or be there 24 hours a day to observe the resident’s behavior or actions in the unit. The most we can do is advise a resident on ways to live in manner that is not conducive to mold growth. A well drafted Mold Addendum will detail the resident’s responsibilities to reduce the amount of moisture present in the unit, and to compel the resident to report both mold and situations which could create a mold situation. The resident’s obligation to maintain the premises according to Florida law are as follows:

83.52 Resident's obligation to maintain dwelling unit. The resident at all times during the tenancy shall:

1. Comply with all obligations imposed upon residents by applicable provisions of building, housing, and health codes.
    
2. Keep that part of the premises which he occupies and uses clean and sanitary.
    
3. Remove from his dwelling unit all garbage in a clean and sanitary manner.
    
4. Keep all plumbing fixtures in the dwelling unit or used by the resident clean and sanitary and in repair.
    
5. Use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances, including elevators.
    
6. Not destroy, deface, damage, impair, or remove any part of the premises or property therein belonging to the manager nor permit any person to do so…

As you can see, an obligation on the resident to keep the premises free from mold is not specifically mentioned in the statute. Section 2 states that the resident shall keep the premises in a clean and sanitary condition. If the resident lives in a manner that causes mold growth, could this be considered a violation of this section? Section 5 states that the resident shall use the air conditioning in a reasonable manner. Does this mean they must run it all the time or maintain a particular temperature? We don’t know.

The Manager’s Responsibilities

According to Florida law, the manager is required to comply with all applicable building, housing and health codes. On top of this, there is an implied “warranty of habitability”. If a unit has a mold problem, and the mold was not caused by the resident in any way, the manager would clearly be responsible, and if the unit were inspected, the unit would probably fail inspection, thus putting the manager in violation of FS 83.51.

83.51 Manager's obligation to maintain premises. (1) The manager at all times during the tenancy shall:

1. Comply with the requirements of applicable building, housing, and health codes; or

 

2. Where there are no applicable building, housing or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition…

Mold is Discovered, Now What?

Once mold is discovered in a unit the manager needs to take swift action to determine the existence of the mold, the dangers, if any, and the source of the problem. Whether this requires a professional mold remediatior or inspector will depend on the situation. If in fact mold is discovered and it is determined that the resident must removed from the premises, this is where the fun begins.

The Big Problem

Here is the scenario. The resident stops paying rent and complains to you about mold, claiming that he is getting sick, has breathing problems, is missing work and his doctor is telling him that mold is the cause. You go check out the unit, and sure enough, in one of the closets where the back of the closet is against an outside wall, there is a strong musty odor. The resident is demanding that you fix the problem. You have a mold inspector and remediator come in to inspect, and it is recommended that a large portion of the wall be removed and the outside of the building repaired and sealed with a moisture barrier. The mold remediator states that there is no safe way that the job can be done with the resident living in the unit, that remediation will require establishing a containment area and decontaminating the entire unit, and that the estimated time for the repair is 3 weeks. Now for the real problem. The resident is refusing to vacate and refusing to pay the rent. Has the resident violated the law? Maybe not. Is this mold problem the fault of the resident? No. Is the manager required to provide a habitable place to live, complying with all building and health codes? Yes. Is the manager required to get rid of the mold problem and fix the unit? Yes. Florida statutes would require the manager to make the unit habitable and presumably free from a mold problem, but the resident is refusing to vacate the premises and is now withholding rent as potentially allowed by law. What can we do?

The Solution

Proper wording in a Mold Addendum could be the answer to our dilemma. Since mold can be a serious problem requiring the manager to terminate the tenancy, we recommend that the parties agree by way of the Mold Addendum that the tenancy can be terminated in the event of a mold situation. Many leases have clauses which allow termination in the event of damage to or destruction of the premises. The Mold Addendum clause deals exclusively and specifically with termination due to mold. Can the resident terminate if there is mold? While it is not mentioned in our sample clause, the answer is yes. If a manager receives notice of mold from the resident and the manager does not rectify the situation within 7 days, the resident by law can most likely terminate the tenancy or withhold rent. Our recommendation is to use a Mold Addendum which includes the sample clause below, and ALWAYS get your attorney involved early on in any mold situation.

SAMPLE MOLD ADDENDUM CLAUSE

TERMINATION OF TENANCY: Owner or agent reserves the right to terminate the tenancy, and RESIDENT(S) agree to vacate the premises in the event owner or agent in its sole judgment feels that either there is mold or mildew present in the dwelling unit which may pose a safety or health hazard to RESIDENT(S) or other persons, and/or RESIDENT(S) actions or inactions are causing a condition which is conducive to mold growth.