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 New Jersey, 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 and tenant rights when it comes to mold in New Jersey rental properties.
Courts in New Jersey 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 New Jersey 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 New Jersey Tenant Rights to Withhold Rent or 'Repair and Deduct' for more information about these strategies, including their limitations.
There is currently no federal law covering a landlord's responsibilities when it comes to mold. Also, New Jersey 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 from their landlord in court to compensate them for their loss. If a judge or jury agrees that the landlord negligently created a mold problem or allowed one to continue at a property, the landlord could be on the hook for any harm.
For example, tenants of a Hamilton, New Jersey rental house claimed they have been hospitalized and afflicted with a range of serious illnesses all on account of high levels of mold in their home. The tenants first spotted mold growing in the basement, which led them to learn from the prior tenants that it had been flooded with four feet of water. Rather than remediate the mold, the landlord reportedly only painted over the mold to make the home look presentable for the new tenants. As a result, the mold was allowed to spread throughout the house and testing uncovered levels that were 450 times normal. The tenants vacated the house, leaving their moldy belongings behind. The tenants told their story to a local newspaper, calling out the landlord while expressing their fear that she will simply paint over the mold again and rent the home to "another poor, unsuspecting family," according to the report.
New Jersey doesn't have any statutes or regulations that require landlords to disclose high concentrations of mold in rental properties to prospective tenants or buyers. However, New Jersey landlords must let prospective tenants know if the rental property has been determined to be located in a flood zone or area (N.J. Stat. Ann. § 46:8-50).
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 New Jersey, check out New Jersey Required Landlord Disclosures.
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. New Jersey 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 along with the written documentation of damage deductions (N.J. Stat. Ann. § 46:8-21.1).
For more information about security deposits in New Jersey, check out New Jersey Security Deposit Limits and Deadlines.
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).