Updated October 22, 2010
Written by Benjamin Ng and Joseph Tobener
Mold is Serious
Mold is a microscopic fungus that grows in almost every damp setting. Improperly maintained dwellings can have toxic mold levels. Mold infestations will flourish in areas with excess moisture, such as leaks, showers with no ventilating fans, wet basements, and air ducts. Because it only takes a day or two for colonies of mold to form, it is very hard to predict and track outbreaks. If you can see it or smell it, most likely, there is a problem. Besides being a health hazard, mold can also rapidly eat away at almost any organic material, including walls and façade.
Article 11, Sec. 581 of the San Francisco Health Code lists mold as a “health nuisance.” It also states that the mold must be “visible or otherwise demonstrable.” Health and Safety Code Sec. 26147 requires residential landlords who know of mold in their rental units to disclose it to tenants.
Testing for Mold
For the most part, landlords are not required to test for mold in their units and the San Francisco Department of Public Health does not test for the presence of it either. Tenants can purchase home test kits, but these are not recommended. The better choice is to hire a mold inspector. Tenants must use caution in testing for toxins as courts will exclude tests not following sound scientific methodology. Geffcken v. D’Andrea, 137 Cal. App. 4th 1298 (2006).
There is no scientific consensus on mold-related illness. Tenants will likely be able to recover for mold-related allergies where a landlord fails to properly remediate mold. It is more difficult to prove permanent illness caused by mold, such as permanent respiratory illness or recurring susceptibility to mold.
Be careful when cleaning up mold because when it becomes disturbed and airborne, it becomes even more hazardous. During the cleanup process, the spore counts of mold may increase ten to 10,000 times.
Tenant Legal Remedies for Mold
Tenants have many legal remedies for mold related issues. Landlords have been found liable for mold under causes of action for negligence, breach of warranty of habitability, intentional infliction of emotional distress, and nuisance.
To successfully litigate mold landlord-tenant cases, however, a number of experts must be hired. All of the following might be required: microbiologists, toxicologists, ventilation experts, mold remediation experts, dermatologists, pulmonary specialists, allergists, and psychologists.
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