Tenant threatening to sue over wants mold inspection

General Landlording & Rental Properties
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Tenant threatening to sue over wants mold inspection

Doug S.
Chicago, IL · Member since 2012 · 22 posts · 3 votes

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

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J ScottPro Member
Moderator
Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
13y

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.

Podcast Guest on Show The Truth About Real Estate Investing in 2024 (What Investors NEED to Know)
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28 Replies

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  • Bienes Raices
    Orlando, FL · Member since 2009 · 2k+ posts · 282 votes
    13y

    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.

    1Reply
  • Doug S.
    OP
    Chicago, IL · Member since 2012 · 22 posts · 3 votes
    13y

    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.

    0Reply
  • Rob K.
    Investor · Southeast, MI · Member since 2012 · 2k+ posts · 1k+ votes
    13y

    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.

    1Reply
  • Doug S.
    OP
    Chicago, IL · Member since 2012 · 22 posts · 3 votes
    13y

    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

    0Reply
  • Xing Zhu
    Durham, NC · Member since 2012 · 498 posts · 48 votes
    13y

    Mold treatment can be very expensive. I had once.

    0Reply
  • Mark H.
    SFR Investor · Phoenix, AZ · Member since 2009 · 484 posts · 181 votes
    13y

    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.

    0Reply
  • Tiger M.
    property manager · Las Vegas, NV · Member since 2012 · 502 posts · 171 votes
    13y

    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.

    2Reply
  • Rob K.
    Investor · Southeast, MI · Member since 2012 · 2k+ posts · 1k+ votes
    13y

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

    3Reply
  • Doug S.
    OP
    Chicago, IL · Member since 2012 · 22 posts · 3 votes
    13y

    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

    0Reply
  • Andrea M.
    Real Estate Investor · Hampton, VA · Member since 2012 · 562 posts · 109 votes
    13y

    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

    0Reply
  • Rob K.
    Investor · Southeast, MI · Member since 2012 · 2k+ posts · 1k+ votes
    13y

    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.

    2Reply
  • Doug S.
    OP
    Chicago, IL · Member since 2012 · 22 posts · 3 votes
    13y

    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?

    0Reply
  • Bienes Raices
    Orlando, FL · Member since 2009 · 2k+ posts · 282 votes
    13y

    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.

    0Reply
  • Xing Zhu
    Durham, NC · Member since 2012 · 498 posts · 48 votes
    13y

    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.

    0Reply
  • Xing Zhu
    Durham, NC · Member since 2012 · 498 posts · 48 votes
    13y

    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.

    0Reply
  • Account Closed
    CA · Member since 2011 · 762 posts · 182 votes
    13y

    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.

    2Reply
  • Steve Babiak
    Real Estate Investor · Audubon, PA · Member since 2009 · 13k+ posts · 8k+ votes
    13y

    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.

    0Reply
  • J ScottPro Member
    Moderator
    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    13y

    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.

    Podcast Guest on Show The Truth About Real Estate Investing in 2024 (What Investors NEED to Know)
    6Reply
  • Rick Bradd
    Real Estate Lender · Pt Hueneme, CA · Member since 2012 · 110 posts · 47 votes
    13y

    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

    0Reply
  • Steven Hamilton IIPro Member
    Accountant, Enrolled Agent · Grayslake, IL · Member since 2011 · 5k+ posts · 2k+ votes
    13y

    I will second exactly what J Scott said. Cheap insurance and it makes sure everything is correct. I have seen walls covered in mold 24 hours after flooding. All it takes is the correct humidity, temperature and situation and mold will grow very quickly.

    -Steven

    [email protected]224-381-2660
    0Reply
  • Joffrey Long
    Lender · Los Angeles, CA · Member since 2012 · 147 posts · 76 votes
    13y

    I take this very seriously and have very strong opinions about it. However, Rick Bradd (previous post) summed it up very well. My advice about his advice is read every sentence in his post.

    Joffrey Long

    0Reply
  • Shawn M.
    Investor · New Haven, CT · Member since 2012 · 285 posts · 175 votes
    13y

    Is this a legal bedroom in the basement? does it have 2 legal means of egress? If not, this is a bigger problem than mold. If it is not a legal bedroom you should get them out of the basement ASAP. If something were to happen (fire, co2, etc) and you were renting out an illegal basement bedroom. You will be paying for a long time.

    As for the mold, be a responsible landlord and get it tested and take the appropriate action after the report comes back. If you have toxic mold, it is in your best interest to get that corrected asap.

    0Reply
  • Doug S.
    OP
    Chicago, IL · Member since 2012 · 22 posts · 3 votes
    13y

    Thanks all for your replies. Got some really good advice.

    I agree, getting the mold test is the responsible thing to do. I'll swallow my pride this time and order a mold test.

    1Reply
  • Joffrey Long
    Lender · Los Angeles, CA · Member since 2012 · 147 posts · 76 votes
    13y

    One more quick thing: Be sure you instruct your mold inspector to give YOU the results, and not discuss them with the tenant.

    You can present any information to the tenant yourself, but you are paying your inspector to give you a report, not fan the flames of drama with your tenant.

    Joffrey

    1Reply
  • Doug S.
    OP
    Chicago, IL · Member since 2012 · 22 posts · 3 votes
    13y

    Update: I spoke with the tenants and they agreed to pay for half of the mold test - this was their suggestion and I accepted their offer.

    Unfortunately mold tests do not say whether a space is inhabitable or not....they only reveal what types of mold and their spore count.

    However, there is more good news. As long as a room does not have any source of water coming in AND the humidity of the room is less than 50%, then mold cannot grow. This won't help with the mold air quality test, but it does ensure that the room should not have any future mold issues.

    0Reply
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