Owner Not Liable for Mold Contamination

Facts: After living in a unit for almost 14 years, the residents notified the owner of the presence of mold in the unit. Within the month, the owner hired an inspection and testing company, which evaluated the conditions of the residents’ unit. The report stated that the unit had “elevated levels of the mold genera Aspergillus/Penicillium type[,]” which is “abundant in nature, and commonly found in the air we breathe, both indoor and outdoor.” Also, the company identified “‘medium’ levels of yeast-like fungi” in the bathroom, which “should not be found growing on any . . . contents inside the home.” The company also identified various conditions created by the residents that contributed to mold growth, including: pet urine “observed at multiple carpet locations”; a piece of wood laid over an open toilet tank creating moisture on a porous surface; plastic bags piled against an HVAC filtration unit; distribution ducts “obstructed by furnishings and storage”; and other evidence of poor housekeeping.

After forwarding the report to the residents, the owner hired a mold removal specialist to develop a remediation plan. In a letter, the owner advised the residents of the need to relocate them (including their cat) during remediation, at the owner’s expense. The owner asked the residents to select a relocation site from a temporary housing election form, and informed them of the date remediation would begin.

The residents refused to sign the temporary housing election form because they didn’t want contractors handling certain items located in the unit, and didn’t want chemicals used in the unit because one of the residents had asthma and other allergies.

The owner offered to employ an organic dry cleaner after remediation, but the residents declined and mailed the owner a list of demands that included provision of a two-bedroom hotel suite, removal and storage of all possessions, installation of laminate flooring, new locks, and rent abatement for the remainder of the lease. The owner accepted responsibility for most of these items, but declined to provide for a hotel stay or issue a past rent abatement. The residents declined to accept these terms and wouldn’t temporarily vacate their unit.

The residents then sued for (1) negligence that resulted in mold contamination, which in turn caused one of the residents permanent disability because of chronic asthma; and (2) breach of the lease by failing to maintain the premises and allowing mold to persist. The owner asked a New Jersey court for a ruling without a trial in its favor. The court agreed, and the residents appealed the ruling.

Ruling: A New Jersey appeals court agreed with the lower court’s ruling.

Reasoning: The appeals court pointed to the owner’s swift response upon learning of a mold problem. Following notification, the owner immediately acted to remediate the unit. These efforts were disrupted because of the residents’ refusal to vacate the unit. As a result, the owner was forced to seek court assistance ordering their relocation to fulfill their contractual responsibilities. Once the residents were out of the unit, remediation was completed within one month.

Second, the record includes evidence that the resident’s asthma condition predated the lease agreement. For example, her primary care physician’s March 28, 1996, chart entry, stating “she had asthma five years prior[,]” supports the fact that the medical condition was preexisting. And finally, the residents’ conduct contributed to the mold growth. The mold evaluation report pointed to the residents’ poor housekeeping as a possible source of mold. Therefore, the residents’ contention that the mold resulted from a flawed HVAC system or leaky faucets was not shown.

• Yakoleva v. Griggs Farm, Inc., April 2013