Tenant vs. Landlord: Mold or Asbestos in Rental Property | Attorney Aaron Hall

Tenant vs. Landlord: Mold or Asbestos in Rental Property

Does mold or asbestos relieve a tenant from paying rent to a landlord in Minnesota?

Rental Property Must be ‘Habitable’

Under Minnesota Statutes, implied in every oral and written residential lease are three covenants or obligations of the landlord. See Minn. Stat. § 504B.161 (formerly § 504.18), subd. 1.

Specifically, this statute provides that

In every lease or license of residential premises, the landlord or licensor covenants:
(1) that the premises and all common areas are fit for the use intended by the parties;
(2) to keep the premises in reasonable repair during the term of the lease or license . . .
(4) to maintain the premises in compliance with the applicable health and safety laws of the state, and of the local units of government where the premises are located during the term of the lease or license . . . .

The covenants of habitability and the covenant to pay rent are mutual and dependent, relieving a tenant of the duty to pay rent when the landlord has breached the covenants. Fritz v. Warthen, 298 Minn. 48, 54, 213 N.W.2d 339, 341-42 (1973).

Is Living with Mold or Asbestos Considered ‘Uninhabitable?’

Whether a specific property is uninhabitable is a decision for a judge (i.e. finder of fact).

At one extreme, mold or asbestos could be sealed in a wall and not harmful to those living with it. This is often the case in older buildings that were developed when asbestos was a common building material. At the other extreme, a house filled with black mold and asbestos dust would be extremely dangerous. Thus, courts must weigh whether the mold or asbestos in a specific situation is sufficient to find that a home should not be lived in.

Courts have found that mold contributed to a property being uninhabitable. See, e.g., Krong v. Armogost, No. 80-C-3958 (Minn. Dist. Ct. 3rd Dist. Aug. 14, 1986); Larson v. Cooper, No. UD-1880209557 (Minn. Dist. Ct. 4rd Dist. March 21, 1988). Here is a great resource on the breach of the covenants of habitability in Minnesota.

Mold or Asbestos Attorney Help

If you are a tenant, you may qualify for free legal help for tenants in Minnesota. Here are some articles that may be helpful to you:

If you are a landlord, you can read more about your rights in these articles written by a Minnesota landlord attorney:

Mold in Rental Housing

The following is a fact sheet written by the Minnesota Department of Health in September, 2008.

The purpose of this fact sheet is to help tenants better understand the hazards associated with indoor mold growth and the options available to resolve mold problems. The rights and responsibilities of tenants and landlords with respect to mold can vary depending on the terms of the lease contract, the cause of the mold growth and whether local government agencies can intervene.

What Is Mold and What Causes It?

Mold is a type of fungus that is present in our natural environment. Mold spores, which are tiny microscopic ‘seeds’, can be found virtually everywhere, including in homes, and are a part of the general dust found in homes. These spores can grow on building materials and furnishings if conditions are correct. Excess moisture is the critical factor in any indoor mold problem. Mold growth should not be tolerated in our homes. Eventually, the moisture and mold will damage what it is growing on, which may include both the building and the renter’s personal belongings. The key to preventing mold growth is to prevent moisture problems.

What Are the Health Concerns?

Health effects from exposure to mold can vary greatly depending on the person, the amount of mold in their home. The type of symptoms that may occur include coughing, wheezing, nasal symptoms and throat symptoms. People with asthma or allergies who are sensitive to mold may notice their asthma or allergy symptoms worsen. Individuals with severely weakened immune system who are exposed to moldy environments are at risk of developing serious fungal respiratory infections. MDH recommends that people consult a medical professional if they are concerned about the effects of a moldy environment on their health.

What Can I Do as a Tenant?

Generally, the landlord is responsible for repairing moisture problems and cleaning up mold, unless it is a minor issue related to the tenant’s behavior.

Tenants should look at their own behaviors to determine whether they may contribute to the moisture problem that is causing mold. Here are some tips:

  • Always use bathroom fans during and after bathing/showering.
  • Avoid spilling liquids on carpet. If this occurs, quickly dry carpets (if carpets stay wet, notify the landlord).
  • Use the kitchen fans when cooking.
  • Don’t run the shower to humidify your home.
  • Avoid using humidifiers unless there is a medical reason to use one.
  • Ensure good air movement in your home to prevent condensation on cold surfaces
    • open windows when possible,
    • don’t block supply and return registers with furniture
    • keep a few inches of space between furniture and walls
    • don’t let parts of your home get very cold (such as closets against exterior walls)
  • Watch what you put down drains to avoid clogging and over-flows

When moisture problems do occur, it is critical to quickly report the cause of moisture and to dry affected areas. Tenants should promptly notify their landlord when they find a moisture problem or mold growth. Common moisture problems include pipe leaks, roof leaks, sewage back-ups, and over flowing toilets/sinks/bathtubs. A verbal communication should be followed up with a letter to avoid misunderstandings. The tenant should keep a copy of this letter, for possible use in future legal proceedings. A timely response is in the interest of both the tenant and the landlord because delays may result in greater costs to clean and repair.

What Can Be Done About Indoor Mold?

Tenants and landlords should try to work cooperatively to investigate and correct moisture problems and remove mold growth. If mold can be seen, if a musty odor is present, or if there is good reason to believe health problems are being caused by mold, a careful inspection of the home should be conducted. Attention should be paid to hidden areas, such as plumbing access areas, crawl spaces, behind mirrors, attics, behind furnishings, closets and cupboards.

Correcting a mold problem properly requires fixing the moisture problem, removing the mold, and keeping the home dry in the future. Mold growth should be cleaned from (non-porous) surfaces such as concrete, metal, glass, tile, and solid wood. Mold growth is difficult to clean on absorbent (porous) surfaces such as dry wall, carpet, fleecy furnishing, and insulation. These moldy materials should be discarded. Personal belongings can be kept if there is no mold growth in them. They may need a deep cleaning to remove mold particles that have settled in the fabric. Merely applying a chemical, like bleach without removing the mold growth is not an effective solution; neither is simply painting over the problem.

There are numerous private contractors who specialize in inspecting or cleaning mold in homes. Where problems cannot be identified or safely remediated, the landlord may want to hire a residential service provider. In addition, certain moisture problems may be covered under property or renter insurance policies.

What Are My Options If the Landlord Refuses to Help?

There are no legal requirements specific to mold in most residential settings. However, Minnesota Law (Minn. Stat. § 504B) requires that a landlord must provide an apartment that is habitable and in reasonable repair. If an apartment becomes uninhabitable, the landlord has violated or breached the lease.

When owners or occupants of mold-damaged buildings are unable or unwilling to correct a problem resulting in indoor mold growth, insurers, private contractors, non-governmental assistance organizations or possibly local units of government may be able to assist. If, and how, government agencies are able to respond to complaints in rental settings depends on the status of local codes or ordinances, and what authority the local program has for dealing with this issue. The following are steps that the tenant may take if the landlord fails to make necessary repairs.

Check the Lease Agreement

Tenants should understand the terms of the lease agreement and be sure to have a signed copy available. Lease agreements seldom address responsibility for mold and air quality complaints specifically, although they should include language specifying how all maintenance and repair concerns are handled.

Contact the Local Housing Department

A city or county may have housing codes that govern apartment rentals and the minimum maintenance requirements. A housing inspection department may exist locally that enforces locally adopted housing or property maintenance codes. If a housing inspection program exists, tenants may file a complaint and request an inspection of their unit or the building. A landlord cannot punish a tenant for contacting an inspector. If the inspector finds violations of the local housing code they may write orders for their correction. In such cases, the landlord will be given time to make the necessary repairs.

Contact the Local Health Department

If a local housing inspection program does not exist or the housing code cannot be applied, then the tenant could try to file a complaint with the local city or county health department. Some local public health agencies may apply their authority under Minnesota Statute 145A to declare a property a public health nuisance and may issue correction orders to the landlord.

Contact the Municipal Building Official

Tenants may seek assistance from their local building code official, if there is one. The building official may inspect the unit to determine if it is structurally sound. They may also, in some cases, enforce maintenance provisions of the building code.

Legal Action

If a housing, health, or building code inspection is not available or the inspection does not result in a correction order, a tenant may still be able to establish that the unit is uninhabitable. Tenants who feel that their landlord has failed to maintain their rental unit in good repair must notify the landlord in writing and request that repairs are made within 14 days or sooner. The tenant should keep a copy of this letter. If the landlord fails to make the requested repairs 14 days after the tenant’s letter was sent or following an inspector’s deadline, the tenant can take legal action. The tenant should try to document the problem, where applicable, with letters, photographs, evidence of health problems, orders from local inspectors, and any other documentation that would help the case.

Who Is Responsible for My Belongings?

Tenants are responsible for their own belongings unless they can prove that the owner’s negligence in maintaining the building contributed to the damage. The insurance carried by the building owner does not cover tenant’s personal belongings. The tenant could try to sue the landlord for lost belongings. Tenants can purchase renter’s insurance. The terms of the policy dictate what coverage is provided. Mold damage may not be covered by the policy, while water damage may be covered. To make a claim to the renter’s insurance provider, tenants should document the damage with photographs and written descriptions, and then contact their insurer regarding policy coverage and specific filing
requirements.

I Live in Public Housing. Are There Other Options?

Yes. The tenant should contact the public housing agency for their city or county. There may be a social worker assigned to public housing in your area whom can mediate between the tenant and landlord. If this is unsuccessful, the tenant can contact the Minnesota Housing and Urban Development Office. Tenants in public housing may want to pursue the other options described above, but the public housing agency and Housing and Urban Development Office should address tenants’ reasonable requests that are within the bounds of property maintenance and building code.