Mold Litigation has moved from homes to condos

By: Lori T. Williams, Owner/Managing Attorney of Your Legal Resource

Imagine it’s a rainy day, and you live in a home where it rains “inside” as well as outside, and you discover the presence of a black oily mold under wet carpeting.  Attorney Jennifer Grieco became somewhat of an expert in mold litigation when her client faced this condition in 1999.  She learned that this mold was known as Stachybotrys, and it was reported to have the potential for toxic effects for homeowners.  “Initially, mold cases were threatened to be the next “asbestos” litigation and the unknown effects of mold exposure certainly resulted in some initial hysteria. Fortunately, the EPA studied the issue and developed well-accepted standards for the clean-up of mold in homes, schools, and other buildings.”

Today it is well accepted within the medical industry that mold is an allergen, and can cause allergic reactions and/or asthma in individuals who are susceptible.  However Grieco notes that the “toxic effects of certain “toxic” molds are more controversial.  Despite what the EPA has issued, mold cases always come down to a battle of experts whether it be on the issue of the adverse health effects of exposure, the proper clean-up of mold in a home and of the contents, or the sources of water and whether the water is entering as a result of builder error or a code violation.”

While mold cases still exist, they did not reach the level of litigation initially suspected in the early 2000’s. “After a number of substantial verdicts and settlements throughout the country, the insurance industry quickly stepped into action to limit its exposure by excluding mold claims in their policies or offering very limited coverage.  Without insurance, judgments against single family landlords or federally subsidized apartment buildings can be uncollectible.  Additionally, a large number of mold cases were against builders as a result of the boom of new construction in this area prior to 2008.  Without insurance, the small building company simply folded in the face of a judgment.   And now that new construction has significantly decreased, there are less viable construction mold cases”, says Grieco.

In recent years, mold litigation cases are brought most frequently by homeowners of Condos.  Liability remains with the condo association, who is responsible for the exterior elements that typically allow for water intrusion.  However, it can take a number of years to see the effects of faulty construction in the interior of a home.  According to Grieco, “a home could have been built with inadequate or faulty flashing that has been allowing water into the wall cavity of the home.  It can take years for the water to travel inward so that the homeowner sees evidence of water staining, or mold on the interior of the drywall in their home.  In those circumstances, the statute of limitations is usually expired against the original builder, or the builder has gone out of business.  But the condo association is still responsible for repairing damage from the common elements including roofing, flashing, plumbing, etc.”

In situations where the condo association and/or its management company failed to timely repair, there may be insurance coverage for those claims.  However, in many instances, the condo association’s insurance carrier will deny coverage based upon a provision in the policy that builder error or workmanship is not a covered claim.  In those circumstances, special assessments will have to be assessed to all condo owners, so that the exterior sources of water intrusion can be fixed as well as for proper remediation of the resulting interior damage.

Grieco offers 4 tips to home owners when it comes to potential mold problems in their home, apartment, or condo:

1.  Hire a forensic architect or indoor air quality specialist to determine if there are any construction defects

The statute of repose limits claims for negligence against a builder to 6 years from date of occupancy, even if the homeowner couldn’t discover the problem until 10 years after construction.  There is no “discovery” rule to extend the statute of limitations for ordinary negligence.   If you suspect water intrusion or mold and the home is still less than six years old, it is in your best interests to have the home inspected by a forensic architect or indoor air quality specialty, at your own expense, to see if the home has any construction defects that could become more significant issues the longer you live in a home and/or the longer the home is exposed to the elements.  The final inspection by the city or township building department after construction does not typically discover the problems that result in long-term water damage and mold litigation cases.

2.  Document the problem ASAP and give notice to the condo association or management company

If you live in a condo association or an apartment, report evidence of water staining, condensation, or  a moldy smell, by providing a written statement to the condo association or management company as soon as you are aware of it.  Mold only gets worse and more expensive to clean the longer it is allowed to live in a home.  This is due to water always being present from the exterior, humidity, or interior water sources.  Mold can develop within 24-48 hours of exposure to sufficient moisture wetting cellulose building materials, such as drywall or insulation, and it will remain until it is removed.

3.  Have the suspected area examined by a qualified company retained by your insurance company or your condo association

Do not attempt to investigate, by yourself, the interior damage in your home that you suspect could be water intrusion or mold.  If you fail to take the appropriate precautions to protect yourself, your home, and your contents, you could be making the situation worse.

4.  Obtain sufficient insurance that protects you and your contents, in the event of mold in your condo

Some condominium bylaws specifically exclude damage to the homeowner’s contents, even if the damage is caused by the water intrusion and mold, which resulted from an exterior common element such as the roof which is the association’s responsibility to repair.  A condo owner should investigate and obtain appropriate homeowner’s insurance to cover the cost of cleaning or replacing contents, and temporary relocation, or they may risk being forced to incur these expenses on their own.

 

For more information about Attorney Jennifer Grieco or her practice, visit her firm’s website.

For referrals to condo law attorneys or other real estate attorneys, contact Your Legal Resource for a free consultation.

 

Lori T. Williams

Lori T. Williams is an attorney based in Birmingham, MI, licensed in 1989.  As owner of a legal referral business called Your Legal Resource, PLLC, Lori personally assists individuals and small businesses in need of legal advice or representation in Metro Detroit by connecting them with the right legal specialist to meet their needs.