All things mold

Years ago, I lived in an apartment that abutted the freeway.  Nice place.  It had 2 bedrooms and 2 bathrooms, a patio in the back and a 8X10 area of empty dirt that I used for my garden.  While we kept our apartment clean, some of our neighbors had not.  This was evident one day when all of a sudden we got a flood of mice running through our backyard area. Apparently, a neighbor had moved out and as they were cleaning their apartment, armies of mice were discovered and started fleeing when cupboards were opened.  We were trapping mice for weeks.

Do you live in an apartment?  Have you ever had a problem with your apartment?  Rodents?  Noisy neighbors?  Mold?  Wait, what...mold?!?  Who wants to live where there is mold in their apartment?!  Turns out mold is a big issue with apartments in the area and such was the issue one couple who came to our library the other day was dealing with.

Seem, couple had had an accidental flooding in their apartment (their kid had stopped up the sink drain turned the bathroom into a lake).  Couple didn't want trouble so they soaked up the water and dried things up best they could.  Fast forward a couple months and couple noticed a funky smell.  Then their kid started with the sniffles, dad kept getting sick, mom got sick, and everyone got rashes on the skin. 

Then, mom noticed the black mold in the bathroom - big, black blotches running all along the bottom of the wall.  Couple says they didn't notice it before and got nervous and called the landlord.  Landlord takes one look at the wall and agrees that it's a problem but said that he shouldn't have to fix it since it's in their apartment and they caused it in the first place (lake, and all).  Couple now wants to sue the landlord for the sickness and the rashes and the sniffles.

A problem, to be sure.

The smart thing was that couple wound up at the law library and asked the law Librarian what resources they could use.  Right off the bat, I suggest they look at:

• California Forms of Pleading and Practice (Lexis; vol 29)
• California Civil Practice: Real Property Litigation (TR)
• Witkin Summary of California Law (TR; Vol.12, Real Property)
• California Landlord-Tenant Practice (CEB)

OK, great.  Off and running went couple.  The problem is that with legal research, the key is to identify the key words you need to find what you need.  So, I started looking around for resources dealing with "MOLD."  Yeah, I found a few things but nothing substantive.  Then, while reading a seemingly unrelated article on landlord tenant issues, I came across the concept of "Toxic Mold" and wouldn't you know it but we have TONS of information on that, like:

• Toxic Torts In-A-Nutshell (TR)
• Toxic Tort Litigation (ABA)
• Am. Jur Trials (TR; 92 Trials 113, Litigating Toxic Mold Cases)
• Am. Jur Proof of Facts (TR; 127 POF3d 315, Liability in Toxic Mold Cases)
• California Construction Contracts, Defects, and Litigation (CEB)

Then came the issue of what the California Codes had to say.  So, suring to LARMAC, I opened to "M" for MOLD, then Landlord and tenant, then to Repair obligation dependent on notice, CC §1941.7.  Since CC (civil code) section 1941.7 was enacted in 2016, I had to flip to the pocketpart (back of volume10 of the West's Annotated Califonria Codes, Civil Sections 1940 to 2214, which read:

(a) An obligation shall not arise under Section 1941 or 1942 to repair a dilapidation relating to the presence of mold pursuant to paragraph (13) of subdivision (a) of Section 17920.3 of the Health and Safety Code until the lessor (i.e. landlord) has notice of the dilapidation or if the tenant is in violation of Section 1941.2.

So, wait - there's a whole lot of information here.  Bascially, Health and Safety Code 17920.3 just says that a building that is in disrepair or is a delapidated building is classified as a substandard building.  Is couple's apartment in such a condition to be labeled a "substandard building?"  Well, that's question for a jury (or judge).  The issue before couple was what Civil Code (CC) section 1941.2 said.  Specifically, 

(a) No duty on the part of the landlord to repair a dilabidation shall arise under Section 1941 or 1942 if the tenant is in substantial violation of any of the following affirmative obligations, provided the tenant's violation contribu8tes substantially to the existence of the dilapidation...(1) To keep that part of the premises which he occupies and uses clean and sanitary as the conditions of the premises permits.

Yeah, it's that one that caused couple some concern.  Remember the lake in the bathroom that couple never bothered to tell landlord about?  Yes, they told the landlord about the mold after the flood that they caused to happen. 

Maybe couple has a case that they did what they could to keep the place "clean and sanitary."  Problem is, they're guessing that that lake in the bathroom was the cause of the mold and they're fretting if that might make the apartment less than sanitary and started wondering (out loud) if now might be a good time to move (since there could be litigation and they could lose their deposit - what with the black/toxic mold and it not being all that sanitary anymore.

Such is the life of a tenant.  Probably a good thing that couple came to the law library before flinging off a lawsuit against landlord.  Best to know what you're up against before you go up against a brick wall.