Illinois Rules Regarding Mold in Rental Properties

Here's what Illinois landlords (and tenants) need to know about mold and the law.

Every landlord should take mold seriously. A top environmental hazard, mold thrives in warm, damp places, and often grows quickly in basements, attics, and other parts of buildings with poor ventilation and humidity problems. Although mold is often associated with buildings in wet climates, no rental property is immune from a mold outbreak, as one can occur following an unattended spill, faulty plumbing, or even a misdirected lawn sprinkler.

If you own or manage a rental property in Illinois, a mold problem could present you with costly cleanup and repair bills as well as lawsuits from tenants claiming that the mold made them ill.

Read on to learn about landlord responsibilities in Illinois and tenant rights when it comes to mold in rental properties.

Tenant Self-Help Strategies in Illinois

Courts in Illinois have recognized two common legal self-help strategies that some tenants choose to pursue following a mold outbreak in their apartment or rental home. The first, known as "rent withholding," is when tenants decide to stop paying rent, claiming the mold has made their apartment uninhabitable. (Note that regardless of what may appear in a written lease with tenants, landlords in Illinois are bound by the "implied warranty of habitability," a legal doctrine that requires providing tenants with apartments in livable condition.) The second strategy, known as "repair and deduct," involves tenants taking care of mold cleanup on their own and then subtracting the cost from their rent.

See Illinois Tenant Rights to Withhold Rent or 'Repair and Deduct' for more information about these strategies, including their limitations.

Landlord Liability for Mold in Illinois

There is currently no federal law covering a landlord's responsibilities when it comes to mold. Also, Illinois doesn't have any laws that specifically address a landlord's duties or liability when it comes to mold prevention and remediation.

However, tenants who believe they have been harmed by the presence of high concentrations of mold in their apartment can try to recover damages in court to compensate them for their loss. If a judge or jury agrees that the owner negligently created a mold problem or allowed one to continue at a property, the owner could be on the hook for any harm.

For example, the resident of a condominium in Des Plaines, Illinois, sued the condominium association to recoup expenses for water damage repair and mold remediation that she incurred after the association allegedly ignored her requests to address a water infiltration issue in her apartment. The trial court awarded the resident $5,497 in damages, plus $10,000 in punitive damages and an additional $12,000 in punitive damages as attorneys' fees, stating that the association neglected its duty to keep the "apartment dry, clean and safe from mold." An appeals court affirmed the trial court's decision, upholding the entire amount of the award. (Schuh v. Plaza Des Plaines Condominium Ass'n, 2014 IL App (1st) 131999 (Ill. App. Ct. 2014).) While this case concerns a condo, similar principles would probably apply in a rental setting.

Mold Disclosure Requirements in Illinois

Illinois doesn't have any statutes or regulations that require landlords to disclose high concentrations of mold in rental properties to prospective tenants or buyers. Also, while federal law requires disclosures about lead paint, it doesn't impose a similar duty on landlords when it comes to mold.

Aside from any affirmative disclosure requirement, however, if you decide to list a property for sale, you should be ready with responses to questions potential buyers might ask about plumbing, humidity, and ventilation issues in your building.

To learn more about landlord disclosure requirements in Illinois, check out Illinois Required Landlord Disclosures.

Deducting Mold-Related Costs from Security Deposits in Illinois

If you believe a departing tenant caused a mold problem (beyond ordinary wear and tear) in an apartment or rental unit, you may wish to deduct the cost of cleaning from that tenant's security deposit. Illinois law allows landlords to do this, provided they give the tenant a written explanation of the mold damage costs (along with any other claimed damages) within 30 days of the tenant's lease termination. If this amount is less than the security deposit, you must return the remainder of the deposit to the tenant within 45 days of the tenant's lease termination (765 Ill. Comp. Stat. § 710/1).

For more information about security deposits in Illinois, check out Illinois Security Deposit Limits and Deadlines.

Preventing Mold Problems

Because so much is at stake, it's important to try to prevent a mold problem from growing in your rental property in the first place, as well as take prompt, effective action to remove excess mold that you discover. For more advice on this, see Mold and Your Rental Property: A Landlord's Prevention and Liability Guide, by Ron Leshnower (Nolo).

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