Oct 122008
Authors: Amy Walker

Many students come into our office worried that the mold they see in their rental unit is dangerous. Our first instinct is to run, not walk, out the door.

There is good reason to be concerned. Mold can cause very serious health problems. But before you pack up, come see us. Believe it or not, that nasty mess may not be grounds enough to break your lease without financial consequence.

The good news: Truly toxic mold is not very common. The bad news: It is very hard to tell which kind has taken up residence as your new roommate.

Further complicating things: Each one of us has different susceptibilities to mold exposure. One person might peacefully exist in a moldy environment with few or no symptoms while another ends up hospitalized.

As far as getting out of your lease goes, there are five places we look for justification. First: look at your lease itself. It may contain clauses relating specifically to mold. They may be contained within another subject heading, like ‘Repairs’ or ‘Condition of Premises’ or in a listing of what ‘Landlord Agrees To .,’ or it may be a paragraph set on its own. Sometimes landlords even include a ‘Mold Addendum’ to the lease.

It’s important to recognize your lease is a contract between you and your landlord and addendums are part of that contract.

Moreover, whether you read it or not, your signature on a lease indicates your agreement to be bound by all of its terms. If that contract already addresses exactly what each party’s responsibilities and rights will be if mold is discovered in the rental, then those parameters must be followed in order to avoid liability for being in breach of contract.

Second: the volume of mold or the underlying cause of its presence and growth may violate municipal codes. This, too, can provide grounds to break a lease. For example, is the mold there because inadequate ventilation has led to its growth? A city or health inspector can come out and prepare an inspection report on their findings related to the mold. Fort Collins’ Building Services Department can be contacted for these kinds of inspections at 970-221-6760. In addition, you can call the Larimer County Health Department at 970-498-6700.

Third: if you signed your lease on or after Sept. 1, 2008, you are protected by Colorado’s new “Warranty of Habitability.” Very generally, it requires landlords to provide a habitable dwelling that is not hazardous to a tenant’s life health or safety. Mold exposure that is making you sick would be included here.

Fourth: for those tenants whose leases were signed prior to the Warranty’s effective date, the Covenant of Quiet Enjoyment may still protect you. Implied in every lease in Colorado, unless your lease expressly excludes it, CQE provides tenants with the right to occupy, use and enjoy the premises without interference from landlord or something under landlord’s control. Landlord’s breach of CQE may give tenant the right to end the lease.

Finally: You might be able to use landlord’s responsibility to disclose hidden defects as justification for terminating the lease. This concept can be used where you were not told about the mold before you moved in, its presence wasn’t obvious at walk-through and the landlord either knew or should have known about the mold but neglected to tell you about it.

In the end, it’s not possible in the span of one column to cover all the considerations and exceptions that need to be taken into account in mold cases. Brevity is simply not the nature of the law. The most critical point here: if you have a mold problem and it seems to be causing health problems, come in and make an appointment with us before you break your lease.

Proactive planning, rather than reactive lease breaking, can be the difference between walking away at minimal or no cost and being on the hook for hundreds or even thousands of dollars.

Amy Walker is a staff attorney for Student Legal Services. SLS’ column appears biweekly Mondays in the Collegian. Letters and feedback can be sent to letters@collegian.com.

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