MOLD AND THE RESIDENTIAL LANDLORD
On January 1, 2016, Senate Bill 655 became effective. Notwithstanding the Toxic Mold Protection Act of 2001 and the absence of guidelines and standards under this act, Senate Bill 655 explicitly lists mold as a problem which may potentially render a property uninhabitable or substandard. The law primarily affects residential rental properties.
The Mold Act of 2001
In 2001, California adopted the Toxic Mold Protection Act of 2001 (Mold Act). (California Health & Safety Code, Sections 26100, et seq.) This Act required the California Department of Public Health (CDPH) to study the issue of fungal contamination in indoor environments and publish its findings. It also directed the CDPH to adopt permissible exposure limits to mold in indoor environments, if feasible, and to adopt standards for assessing the health risks posed by mold in indoor environments, guidelines for identifying indoor mold and remediation guidelines addressing the removal of the mold and its underlying causes. (Cal. Health & Safety Code, Section 26103.) As of December 31, 2015, the CDPH has not adopted the permissible exposure limits, nor has it adopted standards for assessing health risks, guidelines for identifying indoor mold or remediation guidelines addressing its removal. In 2005, in a report titled Implementation of the Toxic Mold Protection Act of 2001, the CDPH concluded that for various reasons, “science-based PELs for indoor molds cannot be established at this time.” [Note that PELs refers to permissible exposure limits.]
At the present time there are no “hard and fast” disclosure requirements for landlords of residential real property relative to mold under the Mold Act of 2001. Certainly, common sense dictates that if mold is present, and if the landlord has actual knowledge of the presence of mold, and for that matter active water intrusion issues, the landlord should disclose such facts in writing to the prospective tenants. Nor are there any remediation requirements imposed on residential landlords under the Mold Act. Residential landlords are also not required to conduct tests, either air or surface, of units or buildings to determine whether the presence of mold exists under the Mold Act.
Senate Bill 655
Effective January 1, 2016, notwithstanding the absence of PELs and guidelines by the CDPH, residential landlords face the prospect of being held accountable for an uninhabitable and/or substandard property due to mold. Civil Code Section 1941.7 and Health and Safety Code Sections 17920 and 17920.3 now expressly provide that mold is a type of problem that could render a property uninhabitable or substandard, and for which a landlord may have a repair obligation. This new law imposes on a residential landlord certain repair requirements, except in the case of the following: 1. The landlord has no notice of the problem and 2. The tenant’s failure to keep the property clean and sanitary or the tenant’s own improper use of the plumbing fixtures contributed substantially to the problem. However, even in the foregoing circumstances, it is recommended that the residential landlord repair the problems under the statutory requirement that a landlord has a duty to maintain the habitability of the residential property. Failure to do so provides the tenant with various legal remedies, including rent withholding, termination of the rental agreement, discounting of rent and other rights and damages.
While there are no specific criteria for determining when a dwelling is uninhabitable due to mold, Senate Bill 655 provides that a property is substandard based on mold when there is visible mold growth, as determined by a health officer or code enforcement officer, to such an extent that it endangers the health, safety or welfare of the occupants. The amount of visible mold growth and the declaration of substandard are within the discretion of the officer reviewing the premises, as there are no specific quantities stated in the statutes. Note that the law does specifically exclude the presence of minor mold found on surfaces that can accumulate moisture as part of their properly functioning and intended use.
Landlords are encouraged to make full disclosure of any issues with the property and also to include in their rental agreements a provision that makes the tenant contractually responsible for taking reasonable steps to reduce dampness and thereby limit mold. A rental agreement should also include a provision requiring the tenant to notify the landlord immediately should there be any plumbing overflows or if the tenant sees any mold growth. Finally, a residential rental agreement should contain a hold harmless provision under which the tenant agrees to hold harmless and indemnify the landlord for any resulting mold due to the tenant’s failure to comply with the terms of the rental agreement relative to mold.