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How To Get Your Landlord To Repair The Mold In Your Home

How To Get Your Landlord To Repair The Mold In Your Home

Florida Statute 83.56 can pressure a landlord to make repairs when the landlord won’t do so willingly.

Mold is an increasingly common issue in Florida because of the humid climate, aging buildings, and dated construction materials.  Tenants often are told by their landlords that mold is a concern of the tenant when, in reality, it is the landlord’s responsibility to mitigate and repair this condition, which they often fail to do. For this reason, we have prepared this article as a practical guide for tenants facing this problem.

This article is written purely from the standpoint of Florida landlord-tenant law and not from a personal injury perspective. The reason is that it is very difficult under Florida law (because Florida follows the Daubert standard) to pursue a personal injury case related to mold.  In addition to the difficult legal standard, most personal injury claims resulting from mold are factually difficult to prove as well.  Unless and until a tenant can prove that the mold was from the landlord’s action or inaction (and not due to a tenant’s failure to properly ventilate the apartment), and compile medical reports that not only diagnose a specific medical condition, and relate the cause of that condition to mold, the evidentiary burden is likely too great to pursue an injury claim in court.

But for those that are interested in demanding their landlord repair the mold condition and are willing to move out of the premises if the landlord fails to do so, read on:

What legal obligation do landlords have to maintain their premises?

Florida statute 83.51 outlines what landlords are required to do to maintain a multi-family apartment building. (If you rent a single-family home or duplex, your lease may alter or modify what your landlord is obligated to maintain. The only way to confirm exactly what your landlord must do is to carefully read your lease.)

In sum, 83.51 states that a landlord must ensure the property is in good repair and in compliance with all applicable building, housing, and health codes.   If there are no applicable codes, landlords are required to, at a minimum, maintain the roofs, windows (including screens), doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads. Landlords must also make sure all plumbing is in reasonable working condition.

Unless otherwise agreed to in your lease, your landlord must also provide for the extermination of rats, mice, roaches, ants, termites, and bedbugs; locks and keys; clean and safe common areas; garbage removal; functioning heat and hot water, and smoke detectors.

How do most landlords respond to mold issues?

As noted above, mold is not specifically mentioned in Florida’s landlord-tenant law. However, that does not mean that landlords get a free pass.

Mold can grow pretty much anywhere and on anything within your home, can spread easily, and, in severe cases, can reduce the structural integrity of your home.  If you find mold in your apartment, use caution, and immediately bring it to the attention or your landlord or property manager.

In a perfect world, your landlord would take corrective action immediately to fully remove the mold. (One would imagine that, as the owner of the property, they would want to remove all mold from their investment)

However, what landlords should do is not always what happens. Often landlords flat out refuse to take care of the mold, claiming that the tenant caused it or it is not their responsibility. Some landlords agree to repair the mold but do so without hiring a professional, leaving the tenant to continue to suffer.  The biggest problem facing a tenant is answering the question “who caused the mold?”.  Invariably, most (maybe all) landlords will respond to a claim of mold by insisting the tenant caused the mold by failing to properly run the AC unit and properly ventilating the property. The sad truth is that proving in court that the landlord’s action or inaction caused the mold is usually a timely and expensive task such that most tenants do not have the necessary funds, and usually no attorney would take such a case for free.  If the mold is discovered upon move-in or shortly thereafter, proving the landlord at fault becomes easier, and if the landlord was aware of the mold growth, the landlord could be guilty of intentional or negligent concealment.

Florida’s landlord-tenant law does not detail how landlords should remediate mold for their tenants. Ultimately, if the mold reappears or does not improve, you will need to take action.

What options do tenants have if their landlord won’t remove or repair the mold?

Showing actual damages is another problem facing tenants experiencing a mold issue (or other issue involving the landlord failing to maintain the unit).  If a landlord is guilty of violating the Florida Statutes and is found to be in “material noncompliance” with the statute or the lease (due to mold or the condition of the unit), the tenant’s remedy many times is to simply terminate the lease and vacate.  Practically speaking though, this is not possible for many tenants as many have no place else to go.

A second alternative is demanding of the landlord to repair the mold or bring the unit into compliance with the lease and/or the building and health codes. In such an instance the tenant may be able to withhold rent.  A tenant should be aware that such instances of withholding rent are almost always met with an eviction lawsuit filed by the landlord. The tenant would then have to defend the lawsuit, using the landlord’s violation of Florida Statute 83.51 as a defense. A tenant may or may not have to deposit rent into the court registry during the pendency of an eviction lawsuit.  A tenant may also sue the landlord should any personal effects be damaged, and possibly recover the expense of moving if the tenant so chooses.  The legal value of personal property however is usually not great and many times not worth the expense and effort of a lawsuit.  None of these options may be particularly attractive to a tenant.  However, if your situation is not manageable, please read on:

Find and Read Your Lease Agreement

The first thing you should do is locate your lease and carefully read through it regarding repairs. Find the section that outlines whether the landlord or the tenant is responsible and for which repairs. Also, check for any timeframes that you must comply with when breaking your lease early. Last, note the full name and address of your landlord, or the agent for which any notices from tenants should be sent.

Write a “seven-day notice to repair defect” letter to your landlord to Terminate the Lease – Florida Statute 83.56

Under Florida Statute 83.56, a tenant must send a seven-day notice to the landlord should the tenant choose to either terminate the lease and vacate or withhold rent until the property is brought into compliance.  This notice is a required condition before taking either of these actions in accordance with Florida’s landlord-tenant law. Florida Statute 83.56 states a tenant should write to the rental unit owner or property manager outlining that you need the mold problem fixed (or other problems with the unit), and that if it is not fixed within 7 days, then you intend to terminate the rental agreement and move out.

Make a copy of the letter before you send it. Here is a template to use for the letter:


_________, 20__

VIA USPS CERTIFIED MAIL RETURN RECEIPT #______________________

To: [Landlord’s Name/Property Manager]

[Landlord’s Address per lease agreement]

Re:         NOTICE FROM TENANT TO LANDLORD – TERMINATION FOR FAILURE TO MAINTAIN PREMISES

Dear __________:

This letter is to advise you that you are not maintaining my dwelling unit as required by Florida Statute 83.51(1) and our rental agreement. If you do not complete the following repairs, non-compliance, violations, or default in the next seven days, I intend to terminate the rental agreement, move out, and hold you responsible for any damages resulting from the termination:

  1. __________________________________
  2. __________________________________
  3. __________________________________
  4. __________________________________

If every reasonable effort is not made to correct the above deficiencies, I will exercise my legal right to terminate the lease agreement seven (7) days from the date this letter is delivered to you.

_________________________

[Tenant name, address, and phone number]


OR

Write a “seven-day notice to repair defect” letter to your landlord to Withhold Rent

Florida Statute Section 83.60 provides that a complete defense to an eviction action filed by the landlord is the landlord’s material noncompliance with FS 83.51(1).  If there is an issue with the unit, a tenant may withhold rent, and the “issue” may be a complete defense to the eviction. However, the “issue” complained of (i.e. mold, leaking roof, dangerous condition, etc.) must be substantial enough to be considered by a Judge as a “material noncompliance” and further, the tenant must give the landlord written notice as indicated above, notifying the landlord of the noncompliance and advising the intention to withhold rent if repairs are not made within seven (7) days.

Properly deliver your letter to your landlord

Florida law gives tenants two options when sending the above letter to the landlord:

(1) by mail; or (2) by hand delivery.

We ALWAYS advise tenants to send all communications with their landlord by USPS Certified Mail Return Receipt Requested. This gives you proof that your landlord received your letter.  Include the Return Receipt tracking number on your letter so they cannot say they did not receive it.

Wait seven days

Your landlord has seven days after receiving your letter to repair the problem. If there is any communication or interaction with your landlord during those seven days, document it. Take notes of any phone calls.

If the Landlord Fails to Remediate Mold

After seven days, if the problem has not been resolved, Florida law provides several options:

  1. You may move out.*
  2. You may immediately file a lawsuit against your landlord. **
  3. You may withhold paying a proportion of your rent equal to the value of your apartment that is uninhabitable.***

*If you move out, the landlord may keep your deposit or sue you for rent.  To successfully defend such a lawsuit, you have to prove that the landlord and not you, caused the mold to grow.

**Filing such a lawsuit would be for damages the mold has caused to your personal property. This is a difficult and expensive lawsuit.  Most of the time is not recommended as it is cost-prohibitive. A tenant would have to pay all legal fees in hopes of recovering usually a small value of the personal property.

*** Determining the amount of rent to withhold can be difficult and will likely lead to the landlord filing a lawsuit against you for eviction.  If it is established by a Judge that the mold (or another issue) is a material noncompliance, then this would be a complete defense to an eviction action, the Judge may reduce your rent or not require you to pay rent at all, and make the landlord pay your attorney’s fees.  However, if the mold or other issue are not deemed as a material noncompliance, the landlord may prevail in the eviction action.

What about your security deposit?

This is the first question on every tenant’s mind after they move out.  Florida’s landlord-tenant law provides the answers.  Section 83.49, Florida Statutes, details the duties of landlords and tenants with respect to security deposits.

The law says that, unless indicated otherwise in your lease agreement, any person moving out prior to the end of their lease (including early termination because of mold) must give seven days written notice to the landlord by certified mail of the tenant’s decision to vacate and include a forwarding address where the tenant can be reached.  This notice is in addition to the seven-day notice to repair the defect that you sent before.

If you and your landlord cannot reach a compromise on the amount of the deposit to be returned, and you feel that your security deposit is being withheld without good cause, then you should contact a lawyer.

The good news is most real estate lawyers, like Larry Tolchinsky, will take your case without you having to pay any costs or attorney’s fees out of your pocket. Larry will get paid from any settlement or recovery from the landlord.

For more information, read: How To Get A Refund Of Your Security Deposit From Your Landlord (without paying attorney fees)

What if the mold damaged your clothes or furniture?

It can be very frustrating when mold spores from the air in your apartment are transferred to your clothing and furniture, causing your personal items to become contaminated.  Usually, the cost of bringing a lawsuit for these items is more than the value of the destroyed property.

Again, document everything! Take pictures and video of the damages, and save all receipts for items destroyed, items replaced, hotel bills and meals.

If you have renter’s insurance, give them a call. Depending on your policy’s terms and deductible, you may seek recovery from them. (Call a lawyer if your insurance company denies your claim.)

What if you have become very sick from mold exposure?

Living in a home or apartment that is infested with mold can sometimes cause people to get sick, especially those with allergies or weakened immune systems.

We strongly advise anyone living in a residential building with mold that they believe to be making him or her sick, to immediately move out after giving the above-referenced notices. Many people feel better and breathe easier within days of leaving.