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Virginia tenants’ rights and remedies in response to mold on the premises

Excessive mold can be a nightmare in a home or apartment. Once you can see or smell mold, you probably have a problem, according to the Centers for Disease Control and Prevention (CDC). While people have different physical responses to molds, the fungus can cause many of the same symptoms people have in response to allergens, and it can be worse if someone is allergic to it or has asthma, COPD or a weakened immune system.

More severe symptoms may include trouble breathing, fever, lung inflammation and scarring, pediatric asthma and more.

Thankfully, Virginia law has legal remedies for tenants trying to get their landlords to make necessary repairs related to mold or to recover money damages for related injuries, property losses and other costs like a hotel stay.

For example, the Virginia Supreme Court found in Sales v. Kecoughtan Housing Co., Ltd., that a tenant had stated claims for negligent repair as well as for actual and constructive fraud. In that case, the tenant had suffered mold in his eye and destruction of his personal property from mold after the landlord said the apartment was safe and that they had repaired the mold, but really had only painted over the mold. Many landlords believe that painting over mold is enough, but the science says this just hides it and does not get rid of it.

What does Virginia statute say?

Virginia statutes require a landlord to keep rental premises in a “fit and habitable condition” in compliance with building and housing codes that protect health and safety. The landlord must make needed repairs and keep in good working order all mechanical systems, among other responsibilities.

The tenant must keep the unit clean and not harm fixtures or surfaces. Specific to mold, the tenant must maintain the premises to avoid moisture accumulation and mold, and must promptly tell the landlord if either occurs.

The landlord also has the legal responsibility to prevent moisture buildup and mold. The landlord must “exercise[e] ordinary care” to “promptly remediate” visible mold by following specific, professional standards. After the repair, the landlord must reinspect for mold and give the tenant a summary of the remediation. The tenant may have the entire written repair record upon request.

If the landlord “materially affect[s] health and safety” through a material breach of the lease or violation of the Virginia Residential Landlord and Tenant Act, the tenant can give written notice and demand the landlord make repairs. If the landlord does not, the tenant can go to court to force the landlord to repair the premises, or can terminate the lease.

If the tenant wants to force the landlord to make the repairs, the tenant should file what is called a “Tenant’s Assertion”, whereby the tenant pays the monthly rent to the court and starts a court case. The court will then determine whether the landlord has to repair the property, whether the tenant gets a rent abatement (a reduction or complete refund of rent), or other damages, and whether the tenant can terminate the lease. The tenant can also recover attorney fees unless the landlord proves they acted reasonably.

An alternative option is for the tenant to send a written notice to the landlord based on the noncompliance that the lease will terminate in 30 days if the mold problem is not remedied within 21 days. If the mold condition is unfixable, the tenant can send a 30-day notice to terminate the lease. In these two circumstances, the landlord must refund the security deposit.

In addition, the tenant can request money damages from the court such as for medical costs, damaged personal property, lost wages, rent paid for unusable premises, mental anguish, alternate housing or hotel costs for time premises were unusable, and more. The tenant may also ask for an injunction, which is a court order to the landlord to do a specific act. The tenant can recover legal fees unless the landlord proves they acted reasonably.

Other potential mold remedies for tenants

Here are some other legal remedies that could potentially be available for the tenant with a mold problem:

  • Lawsuit for breach of the lease agreement
  • Lawsuit for personal injury and property damage
  • Lawsuit for landlord violations of the statutory responsibilities outlined above
  • Lawsuit for violations of the Virginia Consumer Protection Act
  • State law claims such as fraud, negligence, infliction of emotional distress, negligence per se for violation of a building code, and others

A Virginia consumer protection attorney can advise a tenant facing mold issues about their legal options.