Can a Tenant Sue the Landlord After Breaking a Lease Due to Mold
My question involves landlord-tenant law in the State of: Florida
Venue is Florida.
Tenant signed a one-year lease on July 1, 2015. Immediately, the tenant began to experience various unexplained physical symptoms.
It should be noted that the tenant has severe asthma that is maintained with bi-monthly Xolair injections that completely flush the system of allergy generated IgE that causes the asthma attacks. This means that the tenant typically does not have allergy issues while on this treatment.
The tenant assumed the severely pet soiled carpeting in her room caused the symptoms. The tenant requested on multiple occasions for it to be replaced or cleaned. After management finally cleaned the carpeting in September, the tenant’s symptoms did not subside. In fact, her symptoms increased.
When the tenant first moved in, she began seeing a new allergist, who performed a lung function test. This test was repeated in November, revealing diminished lung function.
On November 6, 2015, the tenant discovered mold growth on her bathroom door. Upon further investigation into an above A/C vent and others in the apartment, discovered a significant presence of mold in the entire hvac system. She immediately notified management on this day. The tenant notified management she could not live in the apartment until it was professionally cleaned.
On November 9th, property maintenance replaced a/c vents with new ones and haphazardly scrubbed the air handler. This was simply a cover-up attempt and also distributed mold spores further. This went on a few more times as management sent in a/c service professionals (on payroll) and a remediation crew (on payroll) that stated there was no problem and no concern for the tenant’s health.
On November 16th, tenant procured a professional mold assessment. Following the assessment, management had a remediator visit the apartment for a visual inspection. Management stated they wouldn’t do anything since their professional found nothing, but wanted the tenant’s mold inspection report when received.
On November 20th, the tenant relayed preliminary laboratory findings from the mold assessor indicating the presence of stachybotrys (toxic black mold), which was growing in the mechanical closet and on the air handler servicing the whole apartment.
On November 19th, property management was served, via certified mail, a seven-day notice to cure and informed termination of the lease would follow, if repairs were not made by that time.
On November 30th, the tenant provided management with the complete report, including photos.
Due to weekends and holidays, the 7th day fell on December 2nd. Management did nothing to resolve the issues by this date other than place air scrubbers in the apartment.
On December 2nd at 5pm, the tenant hand delivered a termination letter along with keys to management. Next day received confirmation of receipt via email.
Now, Apartment complex has sent an amount of approximately $1500 for move-out “without notice”.
Questions:
1. Tenant would like to file small claims against apartment complex. Would the management company be the named party?
2. Must guarantor on lease be party (named) in lawsuit?
3. Tenant would at least like to recover expenses incurred (ie mold assessment, motel stay, doctors visits, laundering all belongings, etc..)
However, how is pain and suffering calculated?
Would pain and suffering begin when management was notified and aware of a problem? Or can the pain and suffering go back to move-in, when symptoms began? What is a reasonable per diem amount?
4. Would that be the same for reimbursement of rent? The tenant would at least like November rent reimbursed since she was unable to live in the apartment at all. However, is it reasonable to request all rent returned?
5. Tenant has been made aware of a substantial mold issue complex-wide. So it may be helpful to subpoena previous tenant names and previous maintenance requests/information for possible prior knowledge of mold issue in that particular apartment. Would this be advisable?
6. Since the tenant has received a letter from a collection agency. Should the tenant send the collection agency a copy of the 7-day notice to cure and the termination letter, or just dispute the debt with cease and desist?
7. Are witness statements via letter admissible or must the witness (roommates) be present?
8. Any other helpful advice is advisable.
Re: Mold in Apartment - Moved Out After 7-Day Notice
1. Tenant would like to file small claims against apartment complex. Would the management company be the named party?
The management company acts as agent for the owner. The owner gets named as defendant with management company as co-defendant.
As for using small claims court, if tenant is asking the court to rule that tenant doesn't owe the money that would be asking for a declaratory judgment which I don't think is within the purview of small claims court. Tenant would have to ask for X dollars that tenant believed is owed to tenant.
2. Must guarantor on lease be party (named) in lawsuit?
Not mandatory but it would be a good idea so that a judgment in favor of the tenant would also be in favor of the guarantor and not leave a hole for the guarantor to fall into.
3. Tenant would at least like to recover expenses incurred (ie mold assessment, motel stay, doctors visits, laundering all belongings, etc..)
However, how is pain and suffering calculated?
Would pain and suffering begin when management was notified and aware of a problem? Or can the pain and suffering go back to move-in, when symptoms began? What is a reasonable per diem amount?
Pain and suffering could be anywhere from a dollar to a gazillion dollars. It's calculated any way the tenant wants to calculate, rebutted in any way the defendant wants to rebut it, and ruled upon in any way the judge wants to rule on it.
The when is when the tenant can prove (not just say) negligence on the part of the management/owner. Negligence, at its simplest, is knowing about a hazardous condition, failing to remedy the hazard, in turn doing harm.
4. Would that be the same for reimbursement of rent? The tenant would at least like November rent reimbursed since she was unable to live in the apartment at all. However, is it reasonable to request all rent returned?
It's "reasonable" to "request" it. Whether a judge allows it is impossible to predict.
5. Tenant has been made aware of a substantial mold issue complex-wide. So it may be helpful to subpoena previous tenant names and previous maintenance requests/information for possible prior knowledge of mold issue in that particular apartment. Would this be advisable?
Sure.
But you don't serve a subpoena on the defendant. Subpoenas are for non-parties. You serve a Request for Production of Documents on the defendant. That's called Discovery and is allowed in Florida small claims court.
See Rule 7.020 in the Florida Rules of Small Claims Procedure (read all of the rules).
http://www.floridabar.org/TFB/TFBResources.nsf/0/5E3D51AF15EE8DCD85256B29004BFA62/$FILE/Small%20Claims.pdf
Should the defendant fail to produce the documents, the tenant could petition the court to compel the defendant to do so.
6. Since the tenant has received a letter from a collection agency. Should the tenant send the collection agency a copy of the 7-day notice to cure and the termination letter, or just dispute the debt with cease and desist?
Both, for all the good it will do. Make sure that tenant reads and understands the Fair Debt Collections Practices Act when it comes to dispute/cease and desist.
https://www.ftc.gov/enforcement/rule...tices-act-text
A cease and desist letter may bring on a lawsuit, giving the tenant the opportunity to defend and counter claim, if the lawsuit is brought by the apartments. If the lawsuit is brought by the collection agency (who may just own the debt) then the tenant will have to bring the apartments into the lawsuit. I believe that's called "interpleader" or "cross claim."
7. Are witness statements via letter admissible or must the witness (roommates) be present?
Witnesses must be present in court to testify or their statements are likely to be ruled inadmissable. Ditto any former, or other, tenants regarding prior conditions and notice.
8. Any other helpful advice is advisable.
Tenant should consult an attorney. This appears to be too complex for the tenant to handle without one as it's almost a given that the opponent will have one.
Re: Can a Tenant Sue the Landlord After Breaking a Lease Due to Mold
Quote:
Quoting
iceclimber
...the mold assessor indicating the presence of stachybotrys (toxic black mold)....
Stachybotrys is a genus of molds, not a type of mold, so the mere fact that a mold of that genus is present does absolutely nothing to indicate its level of toxicity. Further, even if the actual report describes it as stachybotrys chartarum, so-called toxic black mold, the scares over the mere presence of that mold have been established to be overblown. Here's the CDC's explanation:
Quote:
Quoting I heard about "toxic molds" that grow in homes and other buildings. Should I be concerned about a serious health risk to me and my family?
The term "toxic mold" is not accurate. While certain molds are toxigenic, meaning they can produce toxins (specifically mycotoxins), the molds themselves are not toxic, or poisonous. Hazards presented by molds that may produce mycotoxins should be considered the same as other common molds which can grow in your house. There is always a little mold everywhere - in the air and on many surfaces. There are very few reports that toxigenic molds found inside homes can cause unique or rare health conditions such as pulmonary hemorrhage or memory loss. These case reports are rare, and a causal link between the presence of the toxigenic mold and these conditions has not been proven.
Quote:
Quoting What should people to do if they determine they have Stachybotrys chartarum (Stachybotrys atra) in their buildings or homes?
Mold growing in homes and buildings, whether it is Stachybotrys chartarum (Stachybotrys atra) or other molds, indicates that there is a problem with water or moisture. This is the first problem that needs to be addressed. Mold growth can be removed from hard surfaces with commercial products, soap and water, or a bleach solution of no more than 1 cup of bleach in 1 gallon of water. Mold in or under carpets typically requires that the carpets be removed. Once mold starts to grow in insulation or wallboard, the only way to deal with the problem is by removal and replacement. We do not believe that one needs to take any different precautions with Stachybotrys chartarum (Stachybotrys atra), than with other molds. In areas where flooding has occurred, prompt drying out of materials and cleaning of walls and other flood-damaged items with commercial products, soap and water, or a bleach solution of no more than 1 cup of bleach in 1 gallon of water is necessary to prevent mold growth. Never mix bleach with ammonia or other household cleaners. If a home has been flooded, it also may be contaminated with sewage. (See: After a Hurricane or Flood: Cleanup of Flood Water) Moldy items should be removed from living areas
It's not clear from your narrative whether your complaint is actually that the landlord did not adequately remediate a mold problem, or that you believe that your hypersensitivity entitles you to an entirely mold-free environment.
Re: Can a Tenant Sue the Landlord After Breaking a Lease Due to Mold
Tenant's complaint is that the landlord did not adequately remediate the mold problem, leaving the apartment uninhabitable for the tenant. Mold assessors professional opinion is that the apartment's mold problem was due to repeated interior water incidents resulting in high water activity of building materials, improper water mitigation for these incidents, and failure to maintain hvac system where a leak in the evaporator coil has introduced water into the return air plenum.
Tenant believes the landlord breached the warranty of habitability with their failure to maintain the property and provide a healthy environment.
As I previously stated, venue is Florida, thus it is unreasonable to expect an "entirely mold-free environment".
Re: Can a Tenant Sue the Landlord After Breaking a Lease Due to Mold
Quote:
Quoting
iceclimber
Tenant's complaint is that the landlord did not adequately remediate the mold problem, leaving the apartment uninhabitable for the tenant. Mold assessors professional opinion is that the apartment's mold problem was due to repeated interior water incidents resulting in high water activity of building materials, improper water mitigation for these incidents, and failure to maintain hvac system where a leak in the evaporator coil has introduced water into the return air plenum.
Tenant believes the landlord breached the warranty of habitability with their failure to maintain the property and provide a healthy environment.
Tenant can "believe" anything he wants to believe. Proving it, with EVIDENCE, is quite another thing.
And, by the way, tenant will also have to pay his experts to testify in court as their written reports will likely be inadmissable unless they are present for cross-examination.
Quote:
Quoting
iceclimber
As I previously stated, venue is Florida, thus it is unreasonable to expect an "entirely mold-free environment".
If that's the landlord's defense, then the landlord better have some Florida appellate decisions that say that because "believing it" doesn't make it so.
Re: Can a Tenant Sue the Landlord After Breaking a Lease Due to Mold
Quote:
Quoting
iceclimber
Tenant's complaint is that the landlord did not adequately remediate the mold problem, leaving the apartment uninhabitable for the tenant. Mold assessors professional opinion is that the apartment's mold problem was due to repeated interior water incidents resulting in high water activity of building materials, improper water mitigation for these incidents, and failure to maintain hvac system where a leak in the evaporator coil has introduced water into the return air plenum.
Tenant believes the landlord breached the warranty of habitability with their failure to maintain the property and provide a healthy environment.
As I previously stated, venue is Florida, thus it is unreasonable to expect an "entirely mold-free environment".
You don't understand how an hvac system works, do you? The evaporator coil of an AC system causes moisture in the air to condense. It drains into a drain pan and allowed to drain outside onto the ground or into a drain. There will ALWAYS be moisture in the drain pain except when the heating system (if a combination heating and AC system).
A leak in the evaporaror coil will result in it leaking refrigerant (R-22 or R 410a most likely) and not only will it not cause water to collect anywhere but will no longer function where water condensing on the evap coil is actually a part of normal operation. So, if the evap coil is leaking there will actuslly be less water/moisture condensing out of the air.
If your professional mold guy is giving you this sort of incorrect information I suggest anything he says to be suspect.
Given the work undertaken by the landlord I think you are going to lose as they took great efforts to attempt to remediate the condition that you seem to be hypersensitive to.
You can do a mold test just about anywhere in Florida and you will find a presence of mold spores. Mold is that prevalent. Controlling its growth is all you can do
Re: Can a Tenant Sue the Landlord After Breaking a Lease Due to Mold
Quote:
Quoting
iceclimber
Tenant's complaint is that the landlord did not adequately remediate the mold problem, leaving the apartment uninhabitable for the tenant.
But not for somebody who does not share the hypersensitivity?
Re: Can a Tenant Sue the Landlord After Breaking a Lease Due to Mold
Quote:
7. Are witness statements via letter admissible or must the witness (roommates) be present
where are the roommates? If this was a single lease have they left the premises? Have they had the same reactions as yourself? If not a common lease; are they still there? Alive?
Re: Can a Tenant Sue the Landlord After Breaking a Lease Due to Mold
photographic evidence of water damaged building materials, visible mold. would that do?
Initially their defense was that the tenant didn't give them enough time, siting statutes for non-residential property (20 day notice).
At this time, their defense is they had four visual inspections, and unable to discover a presence of mold therefore, response protocol could not be developed
We offered to review the air test/swab that was ordered by you and take action however, I did not receive this until Monday 11/30/15
On 11/30, they reviewed the results from the test and have decided on the following protocol which falls well within if not exceeds any requirements as stated from the preliminary review of the assessor
The work below IN ADDITION TO a full replacement of the A/C unit will be scheduled once we can confirm a mutually agreeable date with residents
The work below will NOT require any displacement and should take no longer than one full day to complete
We would also add in a dehumidifier to assist in the control and reduction of RH within the unit and adjust electric cap $6/each to cover the cost of running.
This information was not received until after expiration of the 7-day notice to cure and termination/move-out had occurred.
Quote:
Quoting
jk
where are the roommates? If this was a single lease have they left the premises? Have they had the same reactions as yourself? If not a common lease; are they still there? Alive?
the other two tenants shared similar illness/symptoms but not to the degree as this tenant and had no where else to go. these are first year college students.
Quote:
Quoting
jk
You don't understand how an hvac system works, do you? The evaporator coil of an AC system causes moisture in the air to condense. It drains into a drain pan and allowed to drain outside onto the ground or into a drain. There will ALWAYS be moisture in the drain pain except when the heating system (if a combination heating and AC system).
A leak in the evaporaror coil will result in it leaking refrigerant (R-22 or R 410a most likely) and not only will it not cause water to collect anywhere but will no longer function where water condensing on the evap coil is actually a part of normal operation. So, if the evap coil is leaking there will actuslly be less water/moisture condensing out of the air.
If your professional mold guy is giving you this sort of incorrect information I suggest anything he says to be suspect.
Given the work undertaken by the landlord I think you are going to lose as they took great efforts to attempt to remediate the condition that you seem to be hypersensitive to.
You can do a mold test just about anywhere in Florida and you will find a presence of mold spores. Mold is that prevalent. Controlling its growth is all you can do
I misspoke. The leak was not the evaporator coil itself.
I am aware of the presence of mold in Florida as I stated in a previous post. Air quality tests were performed as well, indicating high spore count.
water damaged building materials were evident (and photographed) in multiple locations. mold growth was present on the inside and outside of the air handler and all four walls of the mechanical closet.
Are there any pro se forms for declaratory judgment?
Re: Can a Tenant Sue the Landlord After Breaking a Lease Due to Mold
Are there any pro se forms for declaratory judgment?
You can google but I doubt it.
You can visit a law library. There are tons of law books explaining all that stuff and giving samples.
You still won't know what to put in it.
You're in way over your head. The type of litigation you contemplate is far beyond the capabilities of small claims court and the defendants' lawyers will run rings around you.
But I guess you'll just have to find that out the hard way.