Mold

Are you a renter in Virginia facing a mold problem? Mold is a serious concern, which can cause health problems and damage to your belongings. Find out what rights you have and what solutions are available to you.

Does the landlord need to tell me if there is mold in the apartment or rental home?

The Virginia Residential Landlord and Tenant Act provides legal protections to tenants, including a landlord's requirement to disclose mold. (Most apartment and house rentals fall under the Virginia Residential Landlord and Tenant Act, but there are some exceptions. You may also have some protections even if your rental agreement is not covered by this Act.)

As part of the move-in inspection, the landlord needs to disclose any visible evidence of mold in areas that are readily accessible in the interior of the dwelling unit. The landlord needs to include this disclosure in writing as part of the move-in report. (The move-in report needs to be provided to you within five days of moving in.)

If the landlord's move-in report states that there is no visible mold, but you discover mold when you move in, you have five days after receiving the move-in report to object to the report, otherwise the move-in report will be deemed correct and creates a rebuttable presumption that there was no visible mold at the time of move-in.

If the landlord's move-in report does state that there is visible mold, you have the option to walk away from the rental contract, or move out if you have already moved in. If you decide to move in or stay, and the landlord needs to remediate the mold problem within five business days.

Note that the move-in inspection protections only deal with visible mold, and the landlord isn't required to tell you about past visible mold problems if they have been remediated in accordance with professional standards. However, a managing agent with no responsibilities for maintenance can be held liable in a lawsuit if the managing agent had actual knowledge of a mold condition and failed to disclose it.

See Virginia Code § 8.01-226.12 and Virginia Code § 55.1-1215.

Is the landlord responsible for taking actions to prevent mold?

The landlord is required to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.

The landlord also has the responsibility to maintain the premises so as to prevent the accumulation of moisture and the growth of mold.

See Virginia Code § 55.1-1220(A)(2), (A)(5).

What if I find mold in my apartment or rental home?

The landlord must promptly respond to any notices from a tenant that moisture is accumulating or visible mold is present. (Make sure to keep copies and notes of all correspondences between you and the landlord, in case you need to take legal action later.)

If there is visible evidence of mold, the landlord must promptly remediate the mold conditions. This must be done, exercising ordinary care, and in accordance with professional standards.

In "accordance with professional standards" means that the landlord can't try to use just any remedy to get rid of the mold - the remediation must follow specific technical specifications. The mold remediation must be performed consistent with guidance documents published by the Environmental Protection Agency, the Department of Housing and Urban Development, the American Conference of Governmental Industrial Hygienists's Bioaerosols Manual, Standard Reference Guides of the Institute of Inspection, Cleaning and Restoration for Water Damage Restoration and Professional Mold Remediation, or any protocol for mold remediation prepared by an industrial hygienist consistent with said guidance documents.

See Virginia Code 8.01-226.12(E) and Virginia Code § 55.1-1220(A)(5).

Can the landlord have me temporarily vacate while the mold is being remediated?

If the mold condition materially affects health or safety, the landlord has the option to require the tenant to temporarily vacate the dwelling unit, so that the landlord can perform mold remediation, for a period of no more than 30 days.

If the landlord has you temporarily vacate, the landlord needs to provide either (i) a comparable dwelling unit, as selected by the landlord, at no expense or cost to the tenant or (ii) a hotel room, as selected by the landlord, at no expense or cost to the tenant.

You are still responsible for paying rent during this time period.

See Virginia Code § 55.1-1231.

What happens after the landlord finishes the mold remediation?

After the remediation of the mold is complete, the landlord must reinspect the dwelling unit to confirm that there is no longer visible evidence of mold.

The landlord also needs to provide a written copy of a summary of information related to any mold remediation during your tenancy. You can also request to see the full package of information that the landlord has available.

See Virginia Code § 55.1-1220(A)(5).

What if I believe recent health issues are related to mold in my apartment or rental home?

If you think mold in your apartment or rental home is causing or worsening health issues, it's important to have your medical records reflect your concern, especially if you need to turn to legal action later. When you go to the doctor, tell him or her that you believe mold may be the cause of your health problems, and if it is the cause, make sure that it is notated in your medical documentation.

The doctor may prescribe tests for exposure to mold. Some common tests include the Myco - M7 Series Mycotoxin Profile, the Fungal Identification (FID) Profile, the Mycobacterium Identification (MB) Profile, DNA Damage Testing, Immunoglobulin Testing, and/or Vasoactive Intestinal Polypetide Testing. The doctor may also perform a fungal culture of your nose and sinuses.

What else should I do if I suspect mold?

It's important to test the environment - your dwelling unit - for mold. You can buy simple DIY kits from any hardware store. Even better is hiring a licensed and certified professional mold inspector, who can complete a more comprehensive inspection and provide expert analysis. Make sure to keep copies of any records you receive, in case you need to resort to legal action later.

Keeping good records of everything related to the mold problem is key in making a strong case, especially if you need to resort to a lawsuit later. For example, take note of any personal belongings that were damaged by the mold, as well as their value and any receipts you may still have. Taking photos is also very helpful.

What if the landlord refuses to remediate the mold?

There are several options available if a landlord refuses to remediate mold.

If the mold problem is materially affecting health and safety, a tenant can serve a written notice to the landlord specifying the problem and state that the rental agreement will terminate, on a date not less than 30 days after the landlord's receipt of the notice, if the mold is not remedied in 21 days.

A tenant can also file a "tenant's assertion" in court against the landlord if a landlord's material noncompliance constitutes a serious threat to life, health or safety. During the time the tenant's assertion is pending, the tenant pays rent to the court instead of the landlord. After reviewing the situation, the court can order the money disbursed to the landlord or back to the tenant, and has the power to terminate the rental agreement. If the tenant wins, the court may even award the tenant costs and attorney's fees.

A tenant can sue under the Virginia Residential Landlord and Tenant Act for "damages" (compensation for harm caused to the tenant or their belongings) caused by the landlord's material noncompliance in failing to remediate the mold. The tenant can also ask for attorney's fees.

A lawsuit may also be based on other claims such as negligence, fraud and breach of contract. The lawsuit can involve issues such as personal injury, wrongful death, and/or property damage. The landlord may have also breached the Virginia Maintenance Code, leading to a "per se negligence" claim.

See Virginia Code 8.01-226.12, Virginia Code § 55.1-1234, Virginia Code § 55.1-1244, Sales v. Kecoughtan Housing Company Ltd., 279 Va. 475 (2010) and Cherry v. Lawson Realty Corp., No. 170718 (Va. 2018).

Do I have any responsibilities as the tenant to prevent mold?

The Virginia Residential Landlord and Tenant Act does require a tenant to use reasonable efforts to prevent the accumulation of moisture and the growth of mold. A tenant must also promptly notify the landlord if any moisture is accumulating or if any visible evidence of mold is discovered.

You may be responsible to pay for mold remediation costs if mold results because of your failure to meet these responsibilities.

See Virginia Code 8.01-226.12, Virginia Code § 55.1-1227(10) and Virginia Code § 55.1-1231.

Where can I find more information about mold and how to prevent it?

These webpages may be helpful:

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Concerned about a mold problem in your apartment or rental home? Or are you a landlord worried about complying with Virginia mold laws?

Contact us at 1-800-516-8060 to find out how D'Lima Law can help you!



Published November 13, 2020.