Open/Close Menu
Your Rental Housing Solution
Home · Property Management · Latest News : Toxic Mold Lawsuit Hinges on Testing

Law of the Land
Tara-Nicholle Nelson, Inman NewsIn the case Holland v. W.M. Realty Management Inc., the tenant (Holland) lived in an apartment building managed by W.M. Realty Management, and claimed to have become ill due to toxic mold in the apartment. About seven months after first complaining of the mold problem to the property manager, the tenant vacated the apartment.

MoldA couple of weeks after moving out, and after the property manager conducted mold remediation in the unit and building, the tenant’s attorney sent an industrial hygienist to collect mold samples from the unit the tenant had previously occupied. Testing of the mold samples indicated contamination.

At trial, the property manager requested that the tenant produce the tested samples. The tenant’s representatives had misplaced the wood sample, but argued that their inability to produce the sample did not impact the property manager’s rights, as the testable shelf life of the sample was only six months and the property manager’s demand came more than four years after the sample had been collected.
The trial court ruled to exclude the tenant from using any of the mold evidence in her case as a sanction for destruction (“spoliation”) of evidence, despite the fact that the tenant’s representatives had located and offered to produce the lost wood sample prior to the court’s ruling.

The appellate division overruled the trial court’s exclusion of the tenant’s mold evidence. The uniquely short shelf life of the samples was not the tenant’s fault and rendered the tenant’s non-willful failure to produce them as non-injurious to the property manager’s disclosure rights — especially given that the tenant had found and offered to produce the lost materials.

Additionally, the appeals court explained, the property manager had been put on notice of the tenant’s toxic mold claim years earlier and had ample opportunity to collect its own samples for mold testing — which it failed to do. As such, the sanctions against the tenant for spoliation of evidence were reversed at the appellate level.

Tara-Nicholle Nelson is author of “The Savvy Woman’s Homebuying Handbook” and “Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions.” Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.
Copyright 2009 Tara-Nicholle Nelson

See Tara-Nicholle Nelson’s feature, Need-To-Knows When Buying REO’s.

American Apartment Owners Association offers discounts for landlords on products and services related to your rental investment, including real estate forms, tenant debt collection, tenant background checks, insurance and financing. Find out more at www.joinaaoa.org.

To subscribe to our blog, click here.

  • Before it happens be ready for it and go for it. Mold doesn’t need light and air to grow, just moisture and material to feed on will sustain it for very long time. This is truly a fact that molds are present everywhere. This is really frustrating to have these dirt and molds eating your homes slowly. You badly need like the New York mold remediation team to totally get rid of it. Aside from being clean, health considerations are also an issue since this could affect any of the family members.

Copyright © 2004 - 2016 AAOA.com. All Rights Reserved.