Some say they know it when they smell it; others may not have as strong a sense of smell. But all around us, we grapple with increasingly wet and unpredictable weather. In years past, a basement that was always dry is suddenly musty. Homeowners and renters alike must be vigilant and informed about the dangers of mold, and the solutions that our legal system offers to protect owners and renters from harm. Mold may begin growing indoors when mold spores land on surfaces that are wet. Molds have the potential to cause health problems. They produce allergens, irritants, and in some cases, potentially toxic substances (mycotoxins). Allergic reactions to mold are common. Molds can also cause asthma attacks
In New Jersey, when you purchase property, a seller has a duty to disclose material defects in his or her property. What is considered a material defect? A seller must disclose any incidents that she knows of where the home was wet or the subject of flooding. The presence of mold is sufficient grounds for a buyer to void a contract of sale.
And for renters, local health officials may cite landlords for failure to address mold conditions. I recently handled such a case in Mercer County Superior Court for a tenant who rented a home from a landlord in Pennington, New Jersey. In that case, the tenant was treated by her pulmonologist after she became ill as a result of the mold in her apartment. She called the Township Health Officer who inspected the apartment, and observed mold. The officer used visual inspection to observe pockets of black mold along the window sills and along the carpeting in one of the bedroom. Based on his visual observations, the officer cited the landlord for the presence of mold, and ordered him to remediate it immediately. The tenant moved out the next day and contacted me for legal advice.
Using New Jersey’s Open Public Records Act, I learned from the Township that the landlord failed to address the health officer’s citation, and instead, proceeded to re-rent the apartment.
I attempted to contact the landlord without success. After consulting with my client, I then filed a Complaint in Mercer County Superior Court, seeking treble damages and reimbursement for my attorney’s fees. Remarkably, the landlord failed to answer and a default was entered. Within a few weeks, a hearing was scheduled by the Judge at which my client appeared. She was my only witness. I introduced her medical records, her doctor’s note, the citation from the health officer, and photos of the black mold that the health officer documented and that were taken on the day of the health officer’s visit. What did my client’s damages include: (1) her moving expenses; (2) a 50% reduction in the rent she paid, also known as a “rent abatement,” because the mold condition had made her apartment uninhabitable; (3) her lost sick days; and (4) her out of pocket medical expenses. My client received a judgment of triple her damages and was fully reimbursed for her attorney’s fees. The Sheriff entered the default and over a period of approximately six months levied the rents paid by other tenants at other properties owned by the landlord in Mercer County. Finally, after suffering the stigma of having his tenants turn their rents over to the sheriff, the landlord contacted me and arranged for full satisfaction of the judgment.
What lesson can be drawn from this victory? The Consumer Fraud Act is broad in scope, and protects tenants like my clients who rent apartments that contain unsafe conditions. Landlords who fail to answer filed Complaints in Superior Court do so at their peril. I am currently using the Consumer Fraud Act to assist other clients who have purchased used cars from car dealers who failed to disclose material defects in the automobiles that were sold. I always review my “demand letter” with my client; and where appropriate, I cite to the Consumer Fraud Act and my ability to seek triple the damages that my client incurs and their attorney’s fees.
Law Office of Tirza S. Wahrman, LLC