Dealing with Mold

Q: In our condo one of the unit owners has had a persistent leak from some plumbing pipes that the board, through our contractors, has been battling for a couple of years, but the leaks are causing some mold that was discovered recently when part of the ceiling and some wallboard was removed. Now the unit owner is saying that she is suffering respiratory problems because of the mold and is threatening to sue the association. What action should we take? How likely is she to succeed with a law suit?

A. The mold topic is a good one to discuss because it is fraught with misunderstanding by many who have to deal with it. Since we live in a coastal area there is frequent water infiltration into structures of all types through various components due to wind driven rain. Of course, there are other sources such as leaks in water and drain pipes. Even though we have been exposed to mold for hundreds of years mold litigation has increased dramatically over the past few years and is a popular topic in legal seminars.

First let's be sure we are "on the same wavelength". What is mold? It is a term generally used to describe simple fungi that grow quickly and readily produce spores. The actively growing component, called mycelium, is the "hairy" mass we see on fruits and vegetables; it's very fragile and easily killed by exposure to disinfectants, sunlight, and heat. More dangerous are spores, which are mold's reproductive component. At two to 25 microns in diameter, spores are easily airborne and inhaled, produced in huge quantities, and exceptionally resistant to chemicals and hat. Fungi require food and water, both of which are in ample supply in residential buildings.

Recently a study was conducted by a Congressionally chartered Institute to determine the association between certain medical conditions and the presence of mold. The study found that while exposure to excessively damp indoor space is "associated with" upper respiratory tract symptoms, there was insufficient evidence that mold caused other health risks, often claimed by litigants, such as the development of asthma, fatigue, shortness of breath, skin symptoms, immune diseases and neurological dysfunction. In an Arizona federal court case, the court excluded an expert's opinion on the plaintiff's illnesses because there was insufficient evidence of an association between these symptoms and the presence of mold. More importantly, the federal court in our district of Virginia reached a similar conclusion in a 2003 case, although an appeals court found a lack of jurisdiction in the case so that the holdings of the court have limited value as precedent. Nevertheless, it does give a good indication as to how the courts will approach the evidence in these cases. However, the Institute's study does say that excessive indoor dampness is a source of some adverse physical reactions. Allergic reactions can be triggered by high levels of mold spores and common species of mold spores can be problematic for asthma sufferers and persons with allergies.

Consequently, the association boards and managers should make sure that they have an operation and maintenance plan in place to insure prompt cleaning of moisture resistant material that may accidentally get wet through water intrusions and removal of materials which can't be cleaned, such as insulation. These comprehensive plans using persons skilled in these issues can be the most effective way to prevent mold issues form becoming mold problems. In order to be totally prepared you should assemble a special team, each of whom must have experience in dealing with mold issues, to respond in the event of a mold complaint at its inception: an environmental consultant, an insurance company representative, a qualified restoration company, a plumber, and legal counsel. If you have the funds available and are in an older building located in a high risk area (waterfront), you may wish to have an assessment by an environmental expert to determine the presence of excessive moisture and its sources.

In your particular case, you need some of these team members now. Always take a mold complaint seriously and investigate it promptly using the appropriate expert and have that expert write up the findings. Get a written recommendation for remediationand then act on it. If it is anticipated to be a significant expense, get bids from qualified contractors. Historically, the folks that find themselves in the most trouble regarding mold claims are those who have ignored complaints and were unwilling to do the destructive investigation necessary to identify the nature and extent of the problem. As the board, you have the fiduciary duty to check out a potential problem and take the appropriate remedial steps based on competent advice from experts. If you take these steps promptly you will hopefully eliminate a physical problem in the building, a possible health problem for your residents and a potential legal problem for the association.