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 York, 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 York rental properties.
Courts in New York 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 York 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 York 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 York doesn’t have any laws that specifically address a landlord’s duties or liability when it comes to mold prevention and remediation. New York City has taken steps to make it easier for tenants to report landlords for outstanding mold problems. As part of its 311 nonemergency services program, the city provides an online complaint form that tenants can use to report mold in their building. After submitting a mold complaint, tenants then receive a Service Request number to track the city’s progress in responding.
New York tenants who believe they have been harmed by the presence of high concentrations of mold in their apartment can also 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, a long-time tenant at a New York City apartment building complained to her landlord after she discovered signs of mold on her apartment walls, which her doctor claimed was causing her rash, according to a report from a local television station. The tenant complained to her landlord, who promised to send a plumber. Although the tenant claims the plumber never arrived, the landlord accused the tenant of turning the plumber away and demanded $750 from the tenant for reimbursement. The tenant refused to pay the landlord and hired a mold remediation company, which confirmed the presence of mold and identified the likely source of a moisture problem. The tenant also reported the landlord to the city (using the 311 program mentioned above), which led inspectors to issue violations and order repairs. After the tenant contacted the local television station, the landlord agreed to reimburse the tenant for her costs, including a $4,000 mold remediation bill.
New York 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 New York, check out New York 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 York law allows landlords to do this, provided they return the remainder of the deposit to the tenant within a reasonable time (typically 21-45 days) following the tenant's lease termination (N.Y. Gen. Oblig. Law § 7-103).
For more information about security deposits in New York, check out New York 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).