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Mold Blog

TENANTS’ MOLD RIGHTS
A REVIEWOF TENANTS HEALTH CONSEQUENCES  & LEGAL RIGHTS WHEN DEALING WITH MOLD IN ARIZONA

INTRODUCTION

 

Tenants need a simple guideline to determine what kind of exposure to mold causes injury and what kind of action, including legal, should be used for protection. Man’s problems with mold was first reported in the bible1.  Despite our mostly dry climate, Southern Arizona provides a wonderful breeding ground for mold–especially during our summer rains.

Today, the majority of  people who live  in both Tucson and Phoenix are tenants in recently constructed apartment buildings or rental houses.2 These residences when they become ‘damp’ or wet are filled with mold friendly food sources made of   wallboard, wallpaper,  and other organic materials.  Additionally,  most buildings in Southern  Arizona are built with flat roofs which  act  as rain water collectors   which then  seep into your residence or workspace especially in the summer. Our warming   sunshine then   acts like a giant  incubator on this biological brew. This explosion of mold and other by-products  can cause you or your loved ones injury. Fortunately,  there are legitimate ways to cope with the problem in order  to maintain your equilibrium by avoiding or lessening the risk of injury and   preserving your legal rights.

Testing For Mold In Your Residence
Concentrate On moisture, amount of
visible mold & its Smell

        When dealing with the subject of mold, forget the mumbo jumbo of  complicated tongue twisting names and mold numbers and  concentrate instead  on the relative dampness of the premises, the physical size of the area of mold you see  and/or  the strength of that pungent  mold ‘smell.’  The gist is the more mold there is from your visual observations, such as on the wall, or smell,  the more likely it is going to spread  in the air with our movements and the more we will inhale it into our lungs, bloodstream and the rest of our body to cause of injury.

Despite the  thousands of kinds of  molds  with exotic names that confuse and bewilder, there is no  absolutely  definitive assessment of what molds and in what quantities  actually  cause illness.  Though–, if there is a lot of mold, no matter how it is measured, and regardless of its  color,  when you are around it, if   it makes you feel  sick–then it is  likely to be linked to your illness!

Even if you cannot see the mold if it is behind a wall or under a carpet, the more it smells, the more the  amount of hidden mold and   the greater your  concern should be.  Remember also, mold can pass through electrical outlets, baseboards  and other spaces in your walls  for you to breathe it in even though you cannot see it. The closer you are to where the mold is located i.e. your bed or favorite chair, the  more likely your health  will be affected. 

Scientists years ago  thought that the more mold spores they counted, the more likely it was to cause illness. There still  may be some truth to that, but within the last decade scientists have determined that there are smaller sub- structures within the mold that cannot be counted, but which are the  likely culprits.  Papers in scientific journals began  stating what   you could see and smell were better tests which conclusions were derived from   ‘meta’ analyses that consolidated  groups of scientific articles, giving them  mathematical values and   boiling them  down  to  provide new conclusions on health effects.

“ conventional quantitative measurements of fungi or other micro-biologic exposures, such as counts of culturable airborne fungi, have shown less consistent associations with health effects than have qualitative assessments of visible dampness or water damage, visible mold or mold odor.”3

This standard is now accepted by the Environmental  Protection Agency4 , NIOSH. 5  the New York City Guidelines,6  the World Health Organization, Canada, France, Germany  and other countries. Since January 2016 it has also  become part of the landlord-tenant  law of California7 where  the visible presence of a substantial amount of mold can be used against landlords in order  to prove your  case.  It is interesting that California recently  passed this ‘visibility’ law  because it was concerned that people were cheating on the air test results!

Nevertheless, in spite of this, under  Arizona law prudence dictates that if you are planning to sue someone,  you should consider  hiring a certified industrial hygienist from a reputable firm who has no conflicts of interest [ i.e.  someone not employed by your landlord]  in order to take indoor and outdoor spore counts of various molds. This must be  backed up by careful record keeping of the test taker that  will avoid wily defense attorneys who will claim that the testing technique was inadequate and  prevent it from   being used in the courts.

Traditional simple  air mold testing employs a  machine like a vacuum which  sucks air from the room  into a cannister for several minutes. The cannister is removed and placed under a microscope where the different mold spores are identified and counted.  If there is a mold smell or for extra caution, a hole is punched in the wall and a thin tube is inserted where  the same test is performed to measure mold in the wall space. Sometimes a tape liftoff or cutting samples are also analyzed for  types and amount of mold spores.  This indoor  testing must be accompanied by one or more  outside air  tests for comparison. If the results are substantially the same, there is no mold problem.  When the amount of mold spores  inside is a lot higher than outside, or if there is a large amount  of a new kind of mold not found outdoors, it signifies an indoor  mold producing condition.  The four most common  types  mold spores which have been strongly associated with causing injury are Stachybotrys, Aspergillus, Penicillum and Cladisporium.

If you use your landlord’s mold tester, you cannot be sure that he is honest, that he is not cheating in some way  when  performing the testing by  providing  inaccurate results, or that he will turn the results over to you.  If you buy a mold testing kit in the store, you will not be able to use it in most  courts  if you  want  to make a claim against your landlord but it may justify your health concerns.

Unfortunately, hiring an investigator also  costs at least $300-500 even for a rudimentary analysis and unless you feel you have a significant long lasting medical condition, which may support a strong legal claim (where your lawyer may  consider  paying  for the testing) , it is probably smarter for you to obtain the other cheap forms of  evidence for potential use in moving out of the residence which a court may allow.  These include:  clear photos of the moldy area from all angles showing how much space it takes up, and its location,[do not save them on your cell phone as you can lose it etc.] a  video of the mold, asking the city health inspector to investigate and document  the moldy condition, and having other independent type witnesses who can talk about the visible  moldy condition or smell. You can also purchase a cheap air tester (My Mold Detective.com ) or a moisture meter all from Home Depot or Lowe’s  and keep a written  record.  These forms of  ‘evidence’ inside your residence may support your early move out and monetary claims.

The NIOSH and EPA government publications supporting visible mold Assessment for health purposes, should be admissible in any court  by themselves because they are official government  publications which require no other foundation under Evidence Rule 9025. Moreover, if you live in an apartment  complex, often  your immediate neighbors on the sides or above and below your apartment will have the same problems and you should obtain pictures  etc.of their premises because mold often travels between the walls and through the vents of the complex.  Despite the law and what the science says, some judges will only allow mold spore test results. So, the safest course when in front of the courts is to use the standardized spore count mold testing if you believe your case is valuable, but that is difficult because many renters just do not have that discretionary amount of  money to perform the tests, especially if they want to move out early and the landlord refuses to return their prepaid rent or security deposit without a fight.

Another simple test is when you begin to  feel better  a little while after you leave  the premises where the mold  is located. Then when you return  inside , you start to feel worse again–this is a form of  proof that it was the damp environment and mold which  made you sick that was  coined in the 1990s’ as ‘Sick Building Syndrome[SBS] 8.

Medical Testing on Patients for Mold  Allergies
Is Not Always Effective


Standardized medical testing for mold illness often does   not work. Many  doctors do not have the training or knowledge to diagnose or treat medical conditions caused by mold. For example, the allergist  will usually give the patient mold ‘scratch’ tests where a bump develops from the antibody producedwhen  a person is ‘allergic’ to the  mold that was injected.  The problem is,  mold may create  another  antibody  of its own which zeroes out  the mold antibody that the doctor is trying to test for. So the patient comes out with ‘normal’ non allergic  readings when that may not be the case at all. You must at least know about this when you deal with an allergist or other doctor  and ask them about their  background and  experience in treating mold  sickness. The problem with mold is there is no recognized standardized protocol for treatment.

Nor does anyone exactly  know what amount of mold causes injury although  practitioners may use various guidelines. Just like no one knows how many cigarettes must be smoked to contract cancer, there is no proof on how much of a certain type or combination of mold and its byproducts including  gram positive bacteria and dust mites is enough to get you sick. This is for several  reasons. First, every person reacts differently to the mold. Just like some people sneeze or   eyes itch  when they are in a room with cats– others are not affected at all. Even different members of the same family will not react the same.  But that is not to say that just because one cannot measure the precise amount of mold needed  to cause injury, one should ignore it since certain types of people as a group  are more susceptible to mold illness than others, so look on the web for practitioners in the area and always employ a healthy dose of skepticism.  If there is a lack of knowledge for treatment –go somewhere else until you find someone you can trust  who can really help you. If needed, after their  diagnosis and treatment, this is where  these professionals may be allowed in a courtroom  to give their expert opinions. And remember, if you are sick, you must get ongoing  treatment  both to help fight your illness and  keep a medical record which you will absolutely need  to use to support your claim  for damages when you fight in court.     

Symptoms Associated with Mold & Dampness
Respiratory & Related Symptoms


Respiratory difficulties  are the   most common symptoms associated with mold. Clients complain of it being difficult to breathe, throat constriction, cough, bronchitis, shortness of breath,  asthma or its aggravation, more frequent colds,  wheezing, nasal congestion, frontal area headaches, chest pain and congestion, sore throat,  pneumonia, bloody noses, increased  allergies , ear pain, skin rash, dermatitis, itchy burning watery eyes and various other  symptoms. Look on Moldblog.com for other symptoms.  Based on a substantial body of scientific literature, the respiratory  symptoms associated with mold and dampness  are the easiest to prove in court. 

Neurological Symptoms


Some practitioners believe that mold produces neurotoxic agents which creates difficulty with concentration and short term memory loss.  Neurological problems such as complaints of poor memory and poor concentration skills—and feeling one  is walking around in a fog  is  more controversial and harder to prove is associated with mold in court. Incidentally there are experts who believe  that mold in the classroom may   have an effect on student learning skills.

There is little scientific literature on complaints  of mold induced reflux[severe heartburn] or abdominal pain and heart disease.

Tenants at Higher Risk to Mold Exposure
Pregnant women & Babies are at Higher Risk


Enough experts  are worried about pregnant women living in a moldy damp environment for you to take notice and perhaps move out.  Some medical experts  believe that Pregnant women who are exposed to quantities of mold are more  susceptible to premature births.  Furthermore, if your  baby is born premature, he has  a much higher susceptibility to respiratory problems or even death around mold than  a full term  enfant.  This is because the respiratory airway of an enfant can more easily  clog up from the irritation, resulting  in choking  and possibly  suffocation and death of the baby from SIDS. Even a full term baby who ordinarily  lives  closer to the ground or on a  mattress containing mold,   breathes the mold particles and by products into his airways and lungs  at  much faster rate than any adult,  which increases its risk of harm.

Combine this with  immature or non existent immunity of  all babies —and your baby is at much higher risk.  There have even  been some controversial studies from  Cleveland9   showing  that enfants exposed to stachybotrys mold are at serious  risk of respiratory disease and  death.  Moreover, meta analyses as recent as 2016 have shown that  even   normal babies, children and adults   living in   moldy  ‘damp’ premises   are more likely to develop and  aggravate  asthma along with  other respiratory conditions.10 So especially for expectant mothers or those who have enfants and young children–beware  the consequences!

Children with Asthma


It is now said that over   8% of the children born in this country have asthma. Such children are at increased risk both because they are children and because they already have asthma which has a greater chance of being exacerbated from mold exposure.11

Low Immunity Individuals

                 
Notably, people who have immune diseases such as lupus, AIDS or  other blood type immune diseases are also  said to be more susceptible to injury from mold and its  byproducts.  When other ‘by products’ are mentioned, it is because mold cannot be viewed in a vacuum all by itself.  Damp premises creating  mold also cause a number of other organisms.  Mold is known as ‘gram negative bacteria’ but in a damp environment measurable  ‘gram positive bacteria’ is also created which combines  with mold to have a magnifying effect on causing illness.  Sometimes rodent droppings and tiny insect mites may also develop in this  continuously  damp  environmental mix  which, unlike your mother’s chicken soup,  creates a figurative  unhealthy  soup that is breathed in enabling  disease to flourish.

Tenants’ Remedy  Rights to Compel Repair or Move Out


Every renter has the right to live in a reasonably safe and habitable residence.12  A man’s home is his castle and the courts in Arizona have passed specific laws to safeguard those rights.  Thus, if you believe that the mold is causing  a health issue to you or your family, provided  you follow some simple rules, you have the right to leave the rental and the landlord’s  contract for rent will end. This should not be used to try to get out of unpaid rent or a contract where you merely do not like the place you rented anymore or do not want to follow simple health rules to leave windows open a bit, dry  the  area as best you can, turn  on a fan for ventilation and , wipe down the tiny amount of visible  mold with vinegar or hydrogen peroxide.    

The rule is simple. Your  contract for tenancy will end if the place is unsafe from a health point of view.  You must notify the landlord promptlyof the specific  mold problems13  in writing and obtain written receipt i.e. his signature on  a signed copy of the letter that he received it. You can deliver this letter to the Landlord owner or the agent depending what he provided you in his  initial papers when you signed the lease. If nothing was provided, you can deliver the notice to the manager or rental agent of the company who owns the building.14  This allows him  to make reasonable inspection and repairs at a specified time  after he receives notice,  and if the residence is still unsafe, then to move out of  the residence. If you do not feel it is so dangerous to require moving out, you must write the landlord promptly  informing him of the  potentially unhealthy condition  and deliver it to him or  his agent,  getting a signature showing his receipt on a copy,  or mail the letter  return receipt to the proper person. The landlord then has 10 days after receipt of your letter  to make repairs. 15

Or if  you have discovered a minor defect,  and it does not cost the greater of one half month’s rent or  more than $300 to repair, then after 10 days written notice to the landlord to repair, you can repair it yourself  and deduct that amount from your  next month’s rent.16 Be sure you write a letter stating this and get a signature from the proper person that he has received it.

If you believe your health and safety are affected now, you must deliver written notice stating that the rental agreement will terminate five days after receipt by the landlord of the notice of breach if  not  remedied within that time.17 Remember the important term is “written notice”to the proper party . If it is not in writing and you do not have a copy and proof of delivery to the landlord of the letter–then the court probably will not provide you a remedy. You are even entitled to get your security deposit back under the law18 and if the landlord wrongfully refuses–up to twice that amount.19

If  you are really getting ill or are an immune compromised individual or have little children, in these situations you are faced with  various options.  You may want to temporarily move out after due written notice.  The landlord may want to temporarily put you up in another residence while he  removes the mold and repair the premises.  Most landlords will be helpful because they  are now  sensitive to the issue of mold injuries. The first rule is he must repair the leaks and dry out the wet spots. If there is a lot of mold involved, when  removing the mold and making repairs, he should use a system called ‘negative containment’ where
the air in the room being repaired is sucked out to make sure he is not spreading the mold all around to the  less affected areas of your  residence. You should also  have him hire  a certified mold tester to do testing after the remediation to make sure that the mold has been substantially removed from the premises and presumably safe to inhabit, or do an inexpensive air mold test yourself.  In other words, the indoor levels of mold should not be any higher than the outdoor levels for the same molds after the repairs have been made. You should be given a copy of the report–otherwise, do not  believe your residence is now healthy.  Unscrupulous landlords will try to cut corners and do not respond quickly. I found a do it yourself air mold testing unit and you can perform the test  for  a total cost of about $70 including mailing MyMoldDetective.com They will send you back the test results within several days of receipt which will help you verify that the mold inside the apartment is no greater or different than the mold outside it. I have not used this device myself so I cannot attest to its accuracy, but it sounds like a good idea!

If you try to leave, the landlord under these circumstances  may threaten and  attempt to keep your security deposit and a month’s rent or more. Do not get taken advantage of, and if necessary, go to the small claims court to protect your rights. Do not be frightened by any clause you might have signed that says you have  given up your rights. The Arizona Residential Landlord and Tenant Act www.housing.az.gov offers specific language dealing with a landlord’s obligations and the tenants’s rights and specifies  that no rental agreement will be allowed to erase tenant rights or remedies20 so any agreement with  a landlord saying he is  not responsible for mold,  is not enforceable.

The landlord should also be asked to pay for the dry cleaning of your clothes if they were contaminated and vacuum the bedding and tufted furniture using a vacuum with a hepa filter to remove and limit the amount of mold being spread into the air but that is negotiable. If you move, you should do this yourself  to lessen the risk of the mold being carried from your old residence into your new one. A ‘Hepa’ filtered vacuum just makes sure that the air coming out of the vacuum has filtered out most of the mold particles. In theory that sounds great but I was unable to find a store in Tucson where you could rent a  vacuum cleaner with a hepa filter. Damp wiping the hard surface of your furniture should be enough and you should turn to the web for self cleaning remedies to help you but do not use bleach since its fumes are toxic.

Some ‘Keep it Simple’ Advice


I cannot emphasize too much that prompt and  proper written notice to the Landlord is essential no matter what you do. Later in this article I recommend filing a claim in Justice of Peace Small Claims Court but I must tell you I have never done so since all my work has been done on large cases in a much more advanced  Superior Court. Although I have tried to keep the directions for you   simple, there are some twists and turns that could possibly confuse you (as it did me). So, my thought is that if your living conditions are really dangerous and you have a landlord who you know will be unhelpful–especially from his past behavior---make certain to deliver a proper notice to the proper individual, take photos, keep your medical records and cleaning bills, and move out no matter what time in the month. The best case scenario is that you do not owe rent and only have to deal with getting back  your prepaid rent and/or security deposit.   If that is the case, you can file a simple claim in the Small Claims Court for those items plus medical bills and lost enjoyment and pain and suffering  by yourself.

Section 9 Tenants


Tenants who receive aid from the Federal Government in the form of Sec. 9 rent
benefits theoretically subject the landlord to severe sanctions  which would entitle non payment of  rent  when there is a moldy condition in the apartment. I have
never had any luck with getting any redress from the federal government in such a
case. But written  complaints to them never hurt.

Small Claims Division of Justice of Peace Courts
May be Easiest Place  to Prove Your Case Without
Presence of a Lawyer or Experts


The Arizona  Justice of Peace court is divided for our purposes into two Civil Divisions. The larger Division allows you to  claim up to $10,000 in damages, but complicated rules of legal Evidence are used ,the landlord will almost always have a lawyer, and there is an added element that you or the other party can appeal. Most often, a lawyer is very helpful to have  in this court but a lawyer is expensive.

The smaller ‘Small claims’ Division may be the place that you get quick, cheap justice. It allows claims up to $3,500 and is often your best bet unless your medical issues are very serious and long lasting. It is mom and pop friendly and a lawyer is not even allowed to represent you or the landlord without everyone’s consent . This makes it easy to use home testing mold kits, photos, articles on mold or other forms of evidence by yourself to prove your case  without the legal  mumbo jumbo  that more sophisticated procedures require. There are two downsides: If you are badly hurt, it is a final judgment with no right of appeal  so you would not bring your claim here anyway. Second, the other side can transfer the case back to the larger JP division which has the  more complicated procedures.

Only 1 Simple Form is Necessary With 7 Simple Steps

 

The ‘written notice’ to the landlord is only one of several keys that you will need in order to unlock the door to the courthouse for your recovery.  This takes a little bit of perseverance. Unfortunately, there is no simple turn key operation like starting your car and putting it in drive. But if you follow the 7 simple steps outlined below, you will have your day in court.

Step 1- Print out the Form from the Web
The 1 page form is found on www.jp.pima.gov JP 118.  If you do not fully  understand the instructions stated below you can find a more in depth explanation on http://www.jp.pima.gov/Info/Small Claimsinfo/fileCase.htm.

Step 2- Write your simple Claim for Relief & Money Demanded
Within the section “Plaintiff’s Claim”  on the form, you must estimate the money the Landlord[defendant]      owes you    In your money damages you may include the costs of filing the form complaint and service. Remember this total sum  cannot be over $3,500 because this Court cannot award more money, and even if it was above this, you can still file so long as you state $3,500 as the total amount you will accept.21

You must state the reasons for your claim in the space provided, such as:
“The defendant has failed to repair and remediate, after due written notice, the damgerous damp and mold conditions all which have caused me (and my children)
health injuries and (property damage) (for which I have terminated my lease) (and
for which I am entitled to a return of my security deposit)and(prepaid rent) (pain and suffering and lost enjoyment.)   Any of the phrases that are in parentheses and which apply, can be included.  That is all you have to write in your statement of claim.

If the landlord did not make timely repairs according to your demand, and because of that you have not paid your rent due,  and you moved out of the premises in the meantime, and the landlord sues you, you can respond in a separate Answer or “Counterclaim”   by showing the premises were  unhealthy and filled  with substantial mold by providing  photos, air test results etc.22

Step 3- Write Plaintiff & Defendant Captions located on Top of Form
You, your spouse and your children are the ‘Plaintiffs’ and before your childrens’ names write “parents of”. If you are the only spouse or your children have not been affected, you do not have to include their names.

Step 4- Write the Defendant Landlord’s Name
This section is a little trickier because your landlord may be a corporation as in a large apartment complex, where there may be an agent and a corporate landlord. The landlord is supposed to have provided you the name and address of the person authorized to receive notices and demands.23 If he has not done so you are supposed to be able to hand the manager or rental agent the notice and obtain a receipt from them. But, I advise you not to do so as it can create an issue of proper notice which the landlord can contest by stating he provided you on move in  with the proper identification of who you were to give notice. If it is corporation and you do not know their address, you can find out who to mail this whole form  by calling the County Assesor’s office at (520)724-8636 or on line at www.asr.co.pima.az.us    Here the corporation is the defendant, but the complaint must be mailed to its statutory agent. You can find the name and address of the corporation’s statutory agent by calling the Arizona Corporation Commission, (520) 628-6560.  This may all sound a little confusing but keep with it and hopefully you will get it done.

Step 5- Go to Justice of Peace Court 240 North Stone, Tucson For Filing
At the Justice Court you will have to pay a $54 filing fee. The ‘Clerk’ will stamp the form you filled out [ you can get a blank copy of the form at  Court,fill it out in your own handwriting] and state it was mailed to the Landlord. You should make at least 3 copies.

Step 6- Put a copy of the form once it is stamped into separate envelopes for each defendant [except if Defendant is a Husband & Wife for which only 1 form is necessary.] This envelope must be mailed “Return Receipt Requested” at the post office.

Step 7 Defendant has Right to Answer
Each Defendant has 20 days to Answer your complaint which is found in the form. He will file an “Answer” and mail it to the court.  When the Court receives it a hearing date will be set approximately 60 days later.   Sometimes the Defendant will ‘Counterclaim’ and allege that you owe him money or other defense.  You will have to respond in a ‘Denial’ filed with the court and mailed to him certified mail, return receipt requested.  Then the hearing date will be set.  Please do not become discouraged by all these steps. You have to do them but no one ever said it was going to be a picnic–and hopefully, thereafter you will receive justice.

This  Small Claims Division   is certainly  worth a try for most mold small claims and will show everyone you are serious about this matter.  Although the clerk cannot give legal advice, she can tell you what forms are needed for you to fill out and what you  need on the forms to get in front of the judge. So if the clerk does not want to be bothered, just remind him that the law says they have to give you more help so that you can file the necessary papers and  argue your claim before the judge.

Presenting Your Claim in Court

 

The main rule to remember is ‘Keep it Simple’

Prepare 3 copies of your Complaint, Photos, Test Results and Medical Records and Medical Bills you incurred for treatment.   Do not exaggerate and include only those records and bills actually connected to this claim.  Give one copy to the Hearing Officer or his clerk; give the second copy to the Defendant and keep the third copy for your reference while arguing your case.  You want to stay organized so  3 ring binders separated into tabs  may be helpful.  Number each of your ‘exhibits’ numerically.

In this mold claim first state that there are moldy and damp conditions that have not been repaired or else were inadequately repaired. Hand the hearing officer a copy of your letter to the Landlord with the return receipt attached to show the landlord received it.

If there are medical bills, state what the injuries for each of you were and present a copy of the medical record and attach a bill for each visit to each record.  Give these copies to the hearing officer and the Landlord as numbered exhibits.

If you have paid for specific cleaning or repairs, attach those bills as well and then present them to the hearing officer in the same manner.

The defendant Landlord will present his defense, and the hearing officer may allow you to respond to the Landlord. If so, do it short and sweet.  The hearing officer will then take the matter under advisement and you will receive his ruling thereafter.

Current Arizona Mold Law


The only Arizona Court of Appeals cases on the subject are unpublished and require tenants to both show the mold they were exposed to was “toxic” and to also prove the “level” at which that amount of mold causes injury.24 This is what is known as ‘legal causation’ Taken literally–this is impossible to prove because there is no specific and limited definition for ‘toxic’ or what specific ‘level’ of mold is said to cause illness.  It is this author’s contention that multiple factors in legitimate scientific articles as previously described along with government guidelines of sensory acceptance as a form of proof is the real measure of causation. 

It used to be that courts could get away with applying a very narrow definition of mold causation and proof to prevent mold cases from proceeding to resolution or trial but recent changes in the law now allows experts to testify providing they have some scientific basis.25  Arizona law now refuses rigid guidelines and realistically states that medical testimony requires flexibility  supportive of physician testimony based on extensive relevant experience in the subject area which the expert possesses.26  This is the stuff that lawsuits, trials and appeals are made of.

So You Want to Hire a Lawyer


Originally, mold cases were thought to be the future of litigation–but for many lawyers they turned into ‘fools’ gold.  An injury lawyer will  not and should not  be interested in taking your case unless several important criteria are met. First, the landlord somehow  has to have  a deep pocket to ultimately pay compensation for your injuries. Traditionally, those monies came from insurance companies. But now, just about all insurance companies  have disclaimer sections where they specifically state they  will not be responsible for mold or other environmental injuries. Sometimes there is a way around this, if your premises were defectively designed, improperly built or a defective pipe caused water damage resulting in mold–this may create that insurance deep pocket for a claim against the builder, the architect or the pipe manufacturer. Most often, it does not.  Suing a small landlord without substantial financial resources can be an expensive waste of time for the lawyer.

Secondly, without doubt, your injuries must be very significant, i.e. documented serious asthma creation, long range significant memory impairment or enfant injuries such as wrongful death are examples of when a lawyer may want  to become involved. Your short range discomfort though it may mean a lot to you, is not something a lawyer will want to deal with. This is not foolish or callous on the lawyer’s part. He may spend years investigating and fighting powerful interests  in order to prevail and he will undoubtedly have to spend tens of thousands of dollars or  more on experts and other costs  in order to potentially obtain an award. In all of this, the lawyer may be facing  hostile judges who are uncomfortable with mold claims.  So, unless your case is an “Oh my god!”  type situation– get out of the residence as soon as you lawfully can and move on with your life without using a lawyer.  You may be upset by what has happened to you but often that will be the only practical and safe  remedy for you to take. You should also appreciate that most Injury lawyers are uncomfortable with undertaking  a mold lawsuit because the exotic names and the rest of the flim flam has gotten to them just as it has confused you. Fortunately, if you have serious injuries and a landlord with deep pockets, it is now easier in Arizona for a well informed  lawyer to proceed on your behalf.

Common Sense is Necessary


Finally, use your  common sense. Co-operate pro-actively with the landlord in your living situation by  placing fans for ventilation for  free flowing air, keep some windows open. At least do a simple check to make sure your  a/c unit pan or refrigerator  is not overflowing or leaking and check your air vents.  Keep your place reasonably clean and replace air filters when requested. Also try to  not to turn a mole hill into a mountain by going crazy over a smidgen of mold which can easily be removed with a rag using hydrogen peroxide or vinegar !  If there is a problem with dampness,  mold leaks etc. do not wait until the wolf is already at your door. Write the landlord, disclose your problems , send it by mail, or by e-mail and save a copy showing he received it . Remember, ‘Evidence is the ammunition of belief’ and that is what your return receipt copy of your letter represents.

Also, in most instances the sky will not be falling.  My experience has shown
that moving  from a mold producing symptom environment into another without mold, within a few weeks to  months the symptoms may lessen and then abate entirely.  The caveat is that for others it may take several years to abate and for still others, where it is said that the mold ‘colonizes’, they may be stuck with the symptoms for the rest of their lives. It is an individual type illness where   even house pets can exhibit symptoms!

Only after you have been  co-operating with your landlord and your efforts are not working, then it is time for you  to fight like hell and protect your rights!

Harold Hyams Esq.

 

MOLD ARTICLE FOOTNOTES

 

1-Arizona Daily Star, April 262000 p.1

2-EPA-Environmental Protection Agency (EPA) Mold Remediation in Schools & Commercia Buildings Publication 402-K-01-001

3-NIOSH Preventing Occupational Respirtory Disease from Exposures Casued by Dampness in Office Buildings, Schools, and Other Non-industrial Buildings (Nov. 212) p. 8,13,14)

4-New York City Guidelines on Assessment & Remediations of Fungi in Indoor Environments (2008)

5-Calif Landlord Tenant Law SB 655(2016)

6-Indoor Air Quality Management Plan for US

7- Journal of Allergy & Clinical Immunology Vol. 113 Issue 2, p. 200-208 (February 2004)

8- Berkeley Lab Health risk of Dampness or Mold in Houses. Indoor Air Quality Scientifidc Findings Resource Bank (2016)

9- Centers for Disease Control & Prevention (CDC), Summary Health Statistics Tables for US Children: National Health Interview Survey 2014, Table C

10- ARS 33-1324

11- ARS 33-1341(8)

12-ARS 33-1313 (B)

13-ARS 33-1361 (A), ARS 33-1362(1)

14-ARS 33-1361

15-ARS 33-1363 (A,B)

16-ARS 33-1361 (D)

17-ARS 33-1321(E)

18-ARS 33-1315

19-ARS 22-5 et. seq.

20-ARS 33-1364

17-ARS 33-1361

18-ARS 33-1321(d)(e)

19- ARS 33-131Mason v. Eastside Apts. CV 09-0155 ( Div. I 2010)

20- ARS 33-1315

21-ARS 33-1365

22-ARS 33-1365

23-ARS 33-1322

24- Abad v.. Eastside Apts. 2CA-CV 2006-0109 (Div. II 2007)

25- Mason v. Eastside Apts. CV 09-0155 (Div.1 2010)

26-Sandretto v. Payson Health Care Mgmt. Inc.  234 Ariz 351, 321 P.3d 168 (2014)

(Copyright)  Harold Hyams 2016