Feature
by Ted Kimball
Claims are on the rise for personal injury and property damage caused by mold growing inside apartments. Some experts predict toxic mold will be the next big tort waive, and it is being touted as “the next asbestos.” Earlier this year, one Florida court awarded the plaintiffs $11 million for personal injuries caused by toxic mold. A recent case in Los Angeles settled with several million dollars being awarded to eight families living in federally funded housing.
Mold needs warmth, water and a food source in order to flourish. Varieties such as aspirgillus, penicillium, stachybotrys and arimonium are water-loving, and excessive growth can prove harmful to humans. Typical injuries attributed to toxic mold include respiratory problems, skin rashes, headaches, lung disease, cognitive memory loss and brain damage.
There are currently no specific governmental guidelines and little available medical information concerning toxic mold, so successful lawsuits are the only guidelines property owners have to go by. One obvious means of protection for property owners, an insurance policy, is not always available. Insurance carriers generally contend that mold is a problem of property maintenance and the responsibility of the property owner, and is therefore not covered. Policy owners are managing to win some cases against carriers, however. The biggest issue is determining what caused the mold to be there in the first place. If, for example, the mold grew as a result of a leaky roof or broken pipe, it would be easier to convince an insurance company that it should be covered under the policy than if it resulted from a failure to regularly clean the bathrooms.
Second-Hand Smoke
This health hazard continues to be the subject of litigation throughout the country. Typically, a residential tenant complains about smoke originating from a neighboring tenant’s apartment. If the tenant claims they have an extraordinary sensitivity to second-hand smoke (for instance, asthma) they would be entitled to protection under disability sections of fair housing laws. If a tenant is disabled the landlord must provide reasonable accommodations for their disability and either allow them to move into another apartment or allow them to terminate their lease and vacate without further liability. Some landlords are setting aside smoking or non-smoking sections of common areas and/or prohibiting smoking in certain units.
Lead-based Paint
New rules that went into effect on September 15, 2000, require the repair of any defect in a painted surface that causes paint deterioration. If a property owner receives federal assistance, including Section 8, they must provide dust testing for lead whenever there is a disturbance of a painted area greater than two square feet on an interior surface or 20 square feet on an exterior surface. The owner must also provide a copy of the test results to all residents. An extension for compliance with these new standards, to September 15, 2001, has been granted to owners of property built between 1960 and 1978. Other new rules include ensuring that inspectors and testers are certified according to EPA regulations; that only lead-safe work practices be used during renovations or repairs; that lead-based paint be monitored and reevaluated for deterioration; that lead-based painted areas be maintained to ensure that the paint remains intact; and in some cases, that the bare soil of common area play areas be tested for lead content. Also effective September 15, 2001, owners are now required to provide HUD training for anyone performing repairs to lead-based paint areas.
Any renovations of pre-1978 housing that may disturb two or more square feet of painted surface require resident notification. The EPA pamphlet Protect Your Family From Lead in Your Home (available from any California Apartment Association affiliate) must be provided to the residents at least seven days before the activity begins, unless a state-certified inspector has determined that the painted surface is free of lead-based paint, or if the renovation is in response to an emergency. If a contractor does the work, the contractor is responsible for notifying the residents and for getting a signed acknowledgment from the residents that they have been properly notified. If staff does the work, staff must obtain the signed acknowledgments. These records must be kept for three years. If the work is to be done in a common area, all residents must be notified in writing. This notification must provide a description of the nature and location of the work, a statement that lead-based paint may be disturbed, and the beginning and ending dates of the work. Residents must also be informed where they can obtain the above-mentioned EPA pamphlet. Noncompliance with these requirements may result in penalties of up to $11,000 per violation.
Fair Housing Update
There have been a number of changes in the California fair housing
laws that all owners and property managers should be aware of in
order to avoid a violation. The new protected classes:
“Sexual orientation” and “source of income” have been raised to the status
of protected classes. Although they were generally considered to
be protected under “arbitrary discrimination,” both have
now been codified in the Fair Employment and Housing Act (FEHA).
"Source of income" refers to any “legal and verifiable” income, except for Section 8. If there is a government subsidy paid directly to the tenant or his representative, the tenant’s required income is limited to their share of the rent. For example, if the rent is $600 per month and the tenant’s share is $150 per month, his or her required income would be $450 per month, not $1800 (using a multiplier of three times the rent). Owners and managers must also consider the aggregate income of the household when determining if the applicants’ income—including married couples’—meets the rental criteria.
The FEHA was also amended to state that it is unlawful to discriminate based upon the “…perception that the person has any of those characteristics” or the “…perception that [they] are associated with a person who has, or is perceived to have, any of those characteristics.”
Beefed Up Enforcement
Last year, President Clinton approved HUD’s $26 billion budget ($1.5 million more than in 1999), which allocated an unprecedented amount of money to fair housing law enforcement. HUD also launched a new public awareness campaign that distributed thousands of booklets around the country and delivered Public Service Announcements on radio and TV urging tenants to file complaints for perceived fair housing violations.
During the year 2000, fair housing verdicts and settlements continued to set records. For example, in May 2000, HUD for the first time brought charges against an owner for racial discrimination on behalf of a tenant’s guest. The landlord was accused of evicting a white tenant on account of that tenant’s African-American guests. In August 2000, an Orange County Landlord agreed to pay a settlement of $226,000 for restricting families to certain units and instructing employees not to rent to Hispanics or African-Americans.
Ted Kimball is the senior partner at Kimball, Tirey, & St. John, a law firm specializing in landlord/tenant law and representing clients throughout California.Any questions regarding the contents of this article should be made by calling 800-338-6039. © Copyright 2001