Magazine article Journal of Property Management

A Toxic Threat: Preventing Investment Dollars from Molding Away

Magazine article Journal of Property Management

A Toxic Threat: Preventing Investment Dollars from Molding Away

Article excerpt

When Erin Brockovich of eponymous movie fame testified before the California Legislature last spring about her most recent toxic investigation, it was personal: In investigating why she and her family had been feeling sick since moving into their new $1,000,000 home, she identified the most recent contaminant to affect the property management industry--toxic mold. As have many others, she has gone to court seeking hundreds of thousands of dollars in property damages as well as damages for personal injury and lost income allegedly due to mold infestation.

The "Classic" Case

On May 7, 2001, the Delaware Court of Appeals decided what may be the paradigm of the toxic mold case in New Haverford Partnership v. Stroot, et al., 2001 WL 493216 (Del.Supr.). In Stroot, two residents of an apartment complex sued their landlord for negligence, alleging that poor maintenance practices led to the accumulation of toxic mold in the apartment units. A jury award of $1,000,000 in compensatory damages to one resident and $40,000 to the other (reduced by the trial court by 22% to reflect contributory negligence) was upheld.

The court found that during the time the plaintiffs resided in the complex, there was a history of mold forming in and around areas where excessive moisture had accumulated. Repeated complaints to the landlord failed to resolve the problem. Expert architectural evidence established that the landlord had failed to meet a "national standard" of due care in maintaining its buildings. Expert mycologist opinion established there was "excessive and atypical" mold buildup due to long-term leaks. Medical opinion established that it was the mold that aggravated one plaintiff's pre-existing asthma, and caused the other plaintiff to develop upper respiratory problems and an allergy to Penicillium. Finally, a ropsychologist testified that one plaintiff developed significant and permanent cognitive impairment in attention, concentration, memory and executive functions as a proximate result of mold exposure.

The Culprit

Known by such names as helminthosporium, aspergillus and stachybotris, these purportedly toxic molds are alleged to cause health impacts ranging from simple clogged sinuses and sore throats, to chronic fatigue syndrome, asthma, pneumonia, vertigo, temporary loss of hearing, migraines, memory loss and other cognitive dysfunction, and hemorrhaging. These organisms also are highly destructive to structures and can be very expensive to remove if they can be removed at all. These molds are omnipresent indoors and outdoors, and become a source of problems when allowed to "bloom" in warm damp conditions. Building areas with a history of leaks, poorly ventilated crawl spaces and HVAC equipment are prime target areas.

A Government Solution

The U.S. Environmental Protection Agency (EPA) has issued a "guidance document" entitled "Mold Remediation in Schools and Commercial Buildings" offering guidance on identifying, remediating and preventing mold buildup. (The document can be downloaded from the agency's Web site at www.epa.gov/iaq/molds/). The EPA's guidance document does not, however, offer any standards for Permissible Exposure Limits (PELs).

While experienced regulatory agencies such as the EPA may be reluctant to tackle so daunting a task, state legislatures may not be so shy. …

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