A 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
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