Virginia Rules Regarding Mold in Rental Properties

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 Virginia, 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 Virginia rental properties.

Tenant Self-Help Strategies in Virginia

Courts in Virginia 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 Virginia 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 Virginia Tenant Rights to Withhold Rent for more information about these strategies, including their limitations.

Landlord Liability for Mold in Virginia

There is currently no federal law covering a landlord's responsibilities when it comes to mold. Also, Virginia 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, the tenants of a rental house in Fluvanna County, Virginia, sued their landlord claiming that mold has made them sick and damaged their furniture. The family suffered a range of symptoms, from sinus and fungal infections to asthma, after first discovering mold behind the toilet in their bathroom, according to press reports. An inspection revealed high levels of aspergillus mold in the building. The medical bills, along with the costs of replacing damaged furniture and household items reportedly put the family $40,000 in debt.

Mold Disclosure Requirements in Virginia

Virginia's law includes disclosure requirements that impose duties on both landlords and tenants. Virginia landlords must disclose any visible mold to tenants before they move in. If there is mold, tenants have the option to terminate the tenancy or not take possession of the unit. If the tenant decides to stay, the landlord must remediate the mold within five days. (Va. Code Ann. § 55.1-1215 (2020).) But tenants must promptly notify their landlord of any visible evidence of mold or even moisture accumulation that they notice. In addition, tenants must "use reasonable efforts" to maintain their apartment and prevent the "accumulation of moisture and the growth of mold." (Va. Code Ann. § 55.1-1227(10) (2020).)

When a Virginia landlord needs to perform mold remediation, the landlord can require the tenant to temporarily relocate, but must provide alternate housing at no charge to the tenant (although the tenant is still responsible for paying rent). (Va. Code Ann. § 55.1-1231 (2020).)

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 Virginia, check out Virginia Required Landlord Disclosures.

Deducting Mold-Related Costs from Security Deposits in Virginia

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. Virginia 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 45 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 (Va. Code Ann. § 55.1-1226 (2020)).

For more information about security deposits in Virginia, check out Virginia 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).