Update 10/17/18: A recent Supreme court case removed a hurdle to pursue mold related personal injury claims in Florida state courts.
In Florida, the leasing and renting of residential and commercial real estate is governed by Florida statutes and Florida court opinions – which together, make-up Florida’s Landlord-Tenant Law.
Mold Issues and Landlord-Tenant Disputes
In Florida, there’s a particularly common issue that causes legal disputes between landlords and tenants year after year, particularly when the weather heats up. It’s mold and mold-related damages.
Any impact on the quality of air that a person breathes inside a rented apartment, or other residential dwelling, or commercial structure (for example, an office building), as well as the impact of mold on personal property, can be a serious legal concern for all of the parties involved in the leasing or renting of real estate (after all, mold can affect the habitability of property).
In fact, mold can be so harmful that its presence can sometimes lead to a personal injury claim being asserted against a property owner and other interested parties (i.e. real estate agents). (An injury claim would be in addition to claims for rent repayment, rent reduction, cleaning or replacement of a tenant’s personal property, remediation, and other applicable causes of action.)
Mold Claims – What About Insurance?
Florida renters, home owners, landlords, property managers, and those operating businesses in our area need to be on a constant vigil against the presence of mold as well as identifying environments where mold can grow and flourish.
Accordingly, most renters, property owners and businesses, can purchase insurance policies that cover the expense of mold remediation and for damages. Thus, if available, it is highly recommended that an insurance policy covering this type of loss should be purchased (make sure to read your policy when you get it to determine the extent of your mold coverage, the steps you must take to make a claim, and if the carrier has a large deductible).
(Also note, some insurance policies may require the insured party to mitigate any damage to the property. So, if additional damage occurs that could have been prevented, the insurance company may deny your claim. Furthermore, Florida law allows insurance companies to withhold payments for any damage until repairs have been made for certain insurance claims. Therefore, the property owner, tenant, or other responsible party may be required to pay for damages before the insurance company will reimburse them for any repairs.)
Can Mold Cause a Loss of Business Claim?
A claim for damages in a mold lawsuit can be significant, particularly if a business is involved and the lawsuit includes a claim for lost profits. For example, a business may sue its landlord for lost profits it would have enjoyed but for the mold event (the mold prevented the tenant from being able to run its business – see, e.g., Katz Deli of Aventura, Inc., v. Waterways Plaza, LLC). Of course, employers can also face their own injury damage claims from employees who may have suffered respiratory injuries from long-term mold exposure at their place of employment.
Tenant Personal Injury Claims
If a residential tenant becomes seriously ill due to mold exposure, then the landlord could be held liable for those injuries. In Florida, residential landlords are responsible for preventing mold by making reasonable repairs to the premises and maintaining the property in such a way that mold is not going to readily grow.
For example, a landlord should continually monitor property for mold growth, especially where mold has been found growing in the past or where the property is located in a environment known to be prone to wet and moist conditions. Also, a landlord should inspect the premises for mold before renting to a new residential tenant, especially when the landlord is aware of a past mold problem caused by a leaking roof, window, sink, toilet or any other part of the premises.
Under Florida law, it is the landlord’s responsibility to be aware of these dangers and to take the necessary precautions to make sure that property is safe. However, if a tenant discovers mold, it is then the responsibility of the tenant to promptly notify the landlord of the mold discovery so the landlord can then undertake immediate mold remediation procedures. Should a tenant fail to do so, the tenant’s procrastination can be a defense by the landlord against a later injury or damage claim, thus mitigating the landlord’s financial liability.
When a claim for personal injury is contemplated, the questions most often asked relate to the type and amount of compensation that can be recovered. To answer those questions, and to determine the viability of any claim against a landlord, the tenant will need to provide details to his or her attorney about things like the length of time they have resided in the property, whether or not they gave notice to the landlord and, if so, when, and whether or not the landlord was aware of the mold before renting the property to the tenant, as well as other pertinent information.
Therefore, a good piece of advice for a tenant having a mold problem with a landlord is to speak with an experienced Florida real estate lawyer to learn about his or her rights because the law provides for the payment of attorney fees in the event a landlord is determined to have violated the law (which means, in many instances, a tenant will not have to pay any money to a lawyer, unless the lawyer wins the case). Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
Learn More: Toxic Mold Exposure and Your Rights
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