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Tenant threatening to sue over wants mold inspection

28 posts by 16 users

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Doug S.

Chicago, Illinois

Dec 28 '12, 10:53 AM


Hello BiggerPockets Forum,

I have tenants in my SFH rental property in Virginia that are giving me a headache. The basement, where one of the tenants is living, has had some minor flooding. I've spent several thousand to install a water barrier to prevent water from coming inside, replaced the carpet and underlayment, and replaced the base boards. Now the tenant who lives in basement is demanding a mold inspection. The house is only 3 bedrooms, but 4 people live in it and basement is NOT technically considered bedroom.

I am under any obligation to provide a mold inspection? I feel like I've already remediated the problem and I have no reason to believe there is any mold damage or that the basement is uninhabitable. There is no visible mold. To be honest, I may normally would be willing to provide the report but the requests of this tenant never seems to end. The tenant is really pushy and self righteous - now threatening to sue because I will not order a mold inspection.

The lease they signed is not covered under VRLTA but this does apply: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-225.6

Thanks



Bienes Raices

Orlando, Florida

Dec 28 '12, 11:21 AM


I've heard that tenants who want to break their lease will use mold (real or not) as an excuse/threat. How much time is left on their lease? Do you want to keep them? If not, perhaps offer them the option to break the lease penalty free.



Doug S.

Chicago, Illinois

Dec 28 '12, 11:30 AM


Hi Bienes,

Thanks for your comment. I wouldn't mind the tenants breaking the lease and even offered them this option. The tenant would rather stay and threaten to take legal action. The lease is over in July.



Rob K

Real Estate Investor from Michigan

Dec 28 '12, 02:01 PM


I don't know how to address the mold issue, but I have a clause in my lease that basements are not to used for sleeping. Everyone thinks it's ok to use the basement as a bedroom, but unless there's a 2nd egress, it's not ok. I would tell this clown that he's not sleeping in the basement anymore. Maybe they will move out and you can be done with them.



Doug S.

Chicago, Illinois

Dec 28 '12, 04:30 PM


Hi Rob,

Thanks for your advice. I've already told the tenants they can move out without penalty for breaking lease but they don't want to move out. They want to stay. They demand I pay for a mold inspection or else they will sue at a small claims court.

Thanks



Xing Zhu

Durham, North Carolina

Dec 28 '12, 04:52 PM


Mold treatment can be very expensive. I had once.



Mark H.

SFR Investor from Phoenix, Arizona

Dec 28 '12, 05:56 PM


What can they "win" in small claims court? Its the wrong venue to compel you to do something. A small-claims judge isnt going to order a mold inspection.



Tiger M.

Property Manager from Las Vegas, Nevada

Dec 28 '12, 08:09 PM


I believe in CYA so if we have an issue we test. If you do a test, have an agreement executed by the tenants that states the remedies and limits your liability. Doing this may end up in your favor. If they end up litigating and get a posative test after your failure to test, it won't be good.



Tiger M., TRADEWIND INVESTMENTS REAL ESTATE AND PROPERTY MANAGEMENT
Telephone: 702-870-5500
Website: http://TRADEWINDVEGAS.COM
Tiger M 702-870-5500


Rob K

Real Estate Investor from Michigan

Dec 28 '12, 08:16 PM
1 vote


I think that I would get the test and tell the tenant that he's paying for the test if it comes back negative.



Doug S.

Chicago, Illinois

Dec 28 '12, 10:53 PM


Hi Rob,

That's a good idea. I ran that by my tenants but they rejected my offer and once again demand that I pay for the mold test, regardless of whether it comes back positive or negative. I think your idea is fair but my tenants are being very very stubborn. Their indignation is making me want to fight them even more, but I know that is not the path I want to go.

Thanks



Andrea M.

Real Estate Investor from Hampton, Virginia

Dec 29 '12, 12:31 AM


I am here in VA and my understanding regarding the code you posted, is pertaining to a move in inspection report within 5 days after move in regarding problems they may notice after move in for the landlord to rectify- that is how I have interpreted it with my tenants. Regarding the actual mold test, I have seen a Mold Test Kit at Lowes and Home Depot ( not sure how good they are but here is the link )[url] http://www.homedepot.com/h_d1/N-5yc1v/R-202534174/h_d2/ProductDisplay?catalogId=10053&langId=-1&keyword=mold+test&storeId=10051 .

Also, as a CYA, I would send a written notification (certified with return reciept) that the area ( basement) in which they use as a bedroom is not to be used as a bedroom but is livable space



Rob K

Real Estate Investor from Michigan

Dec 29 '12, 05:05 AM
2 votes


Linked:

http://www.homedepot.com/h_d1/N-5yc1v/R-202534174/h_d2/ProductDisplay?catalogId=10053&langId=-1&keyword=mold+test&storeId=10051

I would like to add that while I'm not a mold expert, I do know that there are thousands and thousands of different molds and only a handful are harmful. If you do find mold, it doesn't necessarily mean that it's hurting anyone. A test could come back positive for mold and your tenant sees dollar signs, only to find that it's a harmless mold to be remediated.



Doug S.

Chicago, Illinois

Dec 29 '12, 10:53 AM


I would be perfectly okay with getting a mold kit but the tenants are completely stubborn about having a mold test done by a certified/licensed mold expert. At this point I don't mind spending the $300/$400 for a mold test, but the tenants attitude is making this so darn difficult. If this ever did go to court I am fairly confident I would win but I have more important things to do than prove some post-college grad brats wrong.

Any landlord/tenant law experts out there in Virginia?



Bienes Raices

Orlando, Florida

Dec 29 '12, 10:55 AM


It seems unreasonable to ask for a $400 mold test. Personally I would just tell them no and give them the option again of leaving and see how they react.

Who is managing the property locally? Has the PM been to the site to see if there is visible mold? If there's no PM maybe it's time to find one.



Xing Zhu

Durham, North Carolina

Dec 29 '12, 11:35 AM


I feel all these cases of mold litigation are no more than a legal scam promoted by lawyers in the US. Mold is omnipresent in the nature and so far scientific evidence has yet to be found to support any claims that mold can cause permanent health damages.

About 10 years ago, my home insurer spent over 80k for a water leakage due to a broken pipe behind the refrigerator, more than 50% was on a mold treatment. I remember that was the year in which US insurance companies stopped paying for mold.



Xing Zhu

Durham, North Carolina

Dec 29 '12, 11:43 AM


You really want to figure out what will happen if the mold test turns out to be positive. Would your tenants then claim that they start to have permanent nausea, etc.. The best thing is to get them out, even buying them out. Tell them you are considering a renovation of some sort.


Edited Dec 29 2012, 11:48 by Xing Zhu


David C.

Real Estate Lender from Los Angeles, California

Dec 29 '12, 11:58 AM
2 votes


I'm not sure what kind of lease op has, but I think this situation makes a good argument for month-to-month leases, rather than a term lease. If tenant becomes a pain for any reason you can get them out with appropriate notice.

My experience with one year leases is that it is a win for the tenant and a lose for the landlord. If tenant wants out, they just leave and don't even think twice about the fact that they are still obligated on the lease...I'm not going to hassle chasing a tenant in these circumstances, assuming the place is in reasonable condition, I just re-rent and move on; on the other hand, if landlord wants out, landlord is stuck with tenant bs until the lease term runs.



Steve Babiak

Real Estate Investor from Audubon, Pennsylvania

Dec 29 '12, 08:09 PM


A tenant can sue for damages. What damages have occurred? How will this tenant prove that mold is the cause of those damages? A mold test is the answer to that last question ...

A DIY test for mold could get laughed out of court (no matter which side presents that).

Get some serious mold-remediation products from the nearest big box store and apply them in that basement. Remind the tenant that the shower and tub will develop mold and that household cleaning products are normally used to deal with that less severe situation. Seems that should solve the problem in the basement; even let the tenant observe the products being used. After all, that is the objective - to solve the problem.

Just the rambling opinions of a non-attorney.



Steve Babiak, Redeeming Properties, LLC
Telephone: 6109082183
...


J Scott Moderator Donor

Real Estate Investor from Ellicott City, Maryland

Dec 29 '12, 08:23 PM
5 votes


I'm not an attorney, so take this for what it's worth...

If there was flooding in the basement that was the result of something that wasn't the fault of the occupants (in other words, it was a maintenance issue that you were responsible for fixing), it's not unreasonable for the tenants to ask for a mold test. Had there been no flood, this would be an unreasonable request, but water breeds mold and there is no argument that there was recent water intrusion. So, in my opinion, the request is reasonable, especially if someone is legally living in the basement.

A single air quality test shouldn't be more than $250 -- shop around if you're getting quotes more than that.

If the test comes back negative, tell the tenants that you consider the water issue over and done with, and hopefully they'll be satisfied. If the test comes back indicating high spore counts, you should gladly remediate the problem and retest to verify that the remediation worked.

Not only does this seem like the legally prudent road to follow, it also seems like the right thing to do as a landlord/businessman.



Medium_lishproplogoJ Scott, Lish Properties, LLC
E-Mail: [email protected]
Website: http://www.123flip.com
CHECK OUT MY BIGGERPOCKETS BOOKS: http://www.biggerpockets.com/flippingbook


Rick Bradd

SFR Investor from Pt Hueneme, California

Dec 29 '12, 10:39 PM


Mold can be a serious health issue, I had a slab leak in a rental behind the kitchen cabinets and you could smell the mold, and my tenant was "sensitive" to it. I offered to put him in a hotel while I fixed it and to his credit he stayed. I had the insurance underwriter come out and by coincidence the mold remediation contractor who was bidding was there, those two really went at it, the underwriter felt like the guy was scamming me and the bid was out of line, since it was not covered he had nothing to lose. His bid was 8 grand.

I did the remediation demo myself legally and then hired a cabinet builder to redo the boxes, I was able to save the facing and all but one kick panel on the cabinets but I ruined the counter tops and had to replace them, ended up spending nearly 5k with the plumbing bypass and cabinet work. Water is my enemy.

My point is be careful with the health issue, insurance will not cover you and it's the right thing to do for your tenants to keep them safe, sounds like a cheap way to put them at ease.

Good luck, chances are its nothing and you will be better off knowing if it is a problem in the long run.

Rick



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