Mold, technically, is everywhere, in some form or another; it is in the dust on the furniture, in the crumbs left on the counter, and in the air that drifts in from the outside. It is why bread turns green-gray, and why coffee left in the mug on the desk over the weekend will look tan on top. Visible mold, however, is usually a by-product of some other maintenance problem—and usually a sign that that maintenance problem has been going on too long. When mold is given a damp environment and some form of nutrient – either wood, or drywall, or some other building material—it will flourish and grow, creating splotchy discoloration on walls, ceilings and personal property.
All mold needs to grow is a moisture source—a leaky roof, a pinhole leak in a pipe, or an overflowing kitchen sink. It can even form in the drip pans of HVAC units and on air filters, which is why it is important to check the ventilation system on a routine basis. Once a damp environment is created, mold will develop, usually in a matter of weeks; after that, the mold spores will become airborne and begin to spread. Mold can also emit mycotoxins, and volatile organic compounds (VOC), which account for the musty smell one usually finds in a moldy environment. The most common forms of mold found in a residential damp indoor environment are Aspergillus/Penicillium, Cladosporium, and Stachybotros. Bear in mind, though, that these are the genera names—within each set are a number of different but related species.
The question, therefore, is this: what should an association do when there is a complaint of mold growth, and why is the proper response so important? The proper response is two-fold: (1) find and repair the source of the moisture, and (2) remediate the existing mold. Repairing the moisture source means finding the leaking pipe, or roof defect, or HVAC malfunction — whatever is causing the moisture levels within the area to climb. If building materials are wet, but not moldy, they must be thoroughly dried out, usually with industrial fans, to prevent mold from growing further. Materials that cannot be dried out thoroughly must be removed and discarded.
Mold remediation is one of those tasks best left to the professionals, so where there is unusual mold growth, it is best to contact a certified mold inspector.
Sure, you can probably clean out the mold that accumulates on the grout in the shower, but anything larger than a few square feet requires an expert, for two reasons. First, common cleaners, including chlorine bleach, are not recommended for cleaning mold, since they will not completely eradicate the spores. Even fungicides and biocides do not fully remove the mold spores. Second, unless the affected area is properly contained, and airflow to unaffected areas completely blocked, any remediation efforts will disperse spores throughout the living area, compounding the problem.
Generally, a mold inspector will test the walls and floor for excess moisture, assess the visible mold damage, take air and swab samples to determine what types of mold are growing, and draw up a remediation plan. Good mold inspectors will not actually do the remediation themselves—that represents a conflict of interest. That remediation plan will then be turned over to a remediation company for execution, including hermetically sealing off the area, removing damaged and irremediable materials, and cleaning what can be saved. Again, depending on the extent of the mold growth, remediation may involve the structure and fixtures, and it may involve personal property as well. Fabrics, bedspreads, upholstery, etc. can often times be professionally cleaned; non-porous materials can also be cleaned. Certain porous materials, however, like paper, fabrics, and suedes, may not be salvageable, and will have to be discarded.
If the mold is growing in the common areas, that section of the building will have to be cordoned off during the remediation, in order to prevent airflow to the rest of the common areas. If the mold is within a unit, the resident may have to relocate while the remediation is underway. As with any other repair problem in a community association, the question of who bears the responsibility for the remediation depends on where the water source originated, how the governing documents define the boundaries of the unit and of the common elements, and how extensive the damage might be. But, if remediation is done properly—and if the source of the excess moisture is properly repaired as well—mold growth should only be a temporary annoyance.
Why is it so important that the matter is left to the experts? Because improper or ineffective remediation can only increase the exposure of the association, either to future repair costs or to litigation. The future repair costs come when the mold reappears, usually because it wasn’t properly cleaned in the first place. Where the excess water arose from common elements (a leaky roof, or a pinhole in a common element pipe), the association would be liable both for the repairs and for the damage caused by the mold. Where the mold has spread to the common areas themselves, either common rooms or into the spaces behind the drywall of a unit, the remediation again will lie with the association. Regardless of who originally had the duty to fix the water leaks, if the association undertakes the repairs and does an ineffective job, the association may be liable for a claim of negligent repair—which is probably not limited by any provision in the governing documents.
That’s where the risk of litigation comes in. Generally, if the association is sued for breach of contract—because the governing documents required the association to remediate and it failed to do so, thereby breaching the agreement with the unit owner—the damages will include the cost of remediation, the cost of relocating during remediation and the cost of any personal property that could not be salvaged. Where the claim is in negligence, however, damages could include medical expenses from mold exposure, pain and suffering, and (if there were gross negligence by the association), even possibly punitive damages.
The medical expenses component is problematic. It is generally accepted that acute exposure can result in transitory respiratory problems, and possibly exacerbation of existing respiratory issues. In other words, acute exposure could cause stuffy noses and breathing difficulties, and could make existing asthma or allergic rhinitis worse. Generally, however, the symptoms would gradually subside once the resident is out of the contaminated environment. Acute exposure over long periods of time, however, can result in permanent medical issues. Think, for example, of farm workers who gather corn into silos for years; they can develop aspergillosis, or mold nodules in the lung tissue itself.
There is, however, no clear dividing line between transitory and permanent exposure. Should a claim go to litigation, the plaintiff will undoubtedly allege that he/she is permanently damaged by the mold exposure, even if the exposure was not severe. And, of course, where there is a claim to be litigated, there are expert witnesses who would be glad to testify on the plaintiff’s behalf, for their usual fee. There are also any number of treatments purportedly designed specifically for mold “detoxification”. The majority of the medical community seems to think that such treatments are junk science, but there is a large enough minority to lend some credence to the claims.
So, if an association fails to properly remediate a mold situation, it may face not only claims for lost property and remediation costs, but also claims of medical expenses, future medical treatment, pain and suffering and anything else the plaintiff can think of, on top of the costs of defending the lawsuit itself. Attorneys, after all, aren’t cheap. Herein lies the last piece of the puzzle: most associations do not have coverage under their general liability policy for mold damage. Thus, if a claim is made for improper mold remediation, the association may find that it has no insurance to protect against the loss, or against the costs of litigation. For all these reasons, it is best to turn as soon as possible to a certified mold inspector and possibly a mold remediation expert, to at least mitigate some of the potential loss.
By Thomas Mugavero, ESQ.
Thomas is currently of counsel with the law firm of Whiteford, Taylor & Preston, LLC. He has engaged in business litigation practice throughout Virginia, Maryland, and the District of Columbia for over 20 years.