Don't Rely Solely on Clause to Escape Liability for Mold-Related Problems
For years, mold has been a controversial issue at residential properties. That's because it can cause serious health problems and be expensive to remediate. Mold prevention techniques and effective remediation of existing mold should be high on your list of maintenance and safety concerns. But perhaps the biggest concern for the community association is the issue of responsibility for mold-related problems.
It's not uncommon for a member who finds mold in his unit to claim that the mold has caused health problems. And that member could threaten to sue the association for damages. If your association's governing documents have a clause that provides that the association is not liable to any member for damage or injury resulting from a leak, you might think that you're off the hook for damages. But in some cases, associations are liable for members' mold-related injuries notwithstanding the clause.
Don't rely on your clause alone to relieve you of responsibility. Here are additional steps you can take, including asking members for help in keeping the community mold-free.
Make ‘Good Faith Efforts’
Even if your governing documents state that the association isn't liable, a member who suffers a mold-related illness could win a claim against the association depending on how the association responded to the mold problem. If the clause in your governing documents states that the association isn't liable to any member for damage or injury—namely, mold-related illness—resulting from a leak provided the association acted in “good faith” in fixing it, you could still be in trouble if your good faith efforts are inadequate or fail and you don't pursue remedying the problem. For example, hiring an unlicensed contractor to repair leaking pipes and remove mold from affected walls may not be a “good faith” effort that would protect you from liability.
And if subpar remediation efforts fail and you don't either find a more qualified remediation service or allow the member to pay for her choice of remediation measures and reimburse her for the cost, a court could find that you're responsible for her injuries. That's because, at that point, the member's injuries didn't arise directly from the leak—they arose from the association's negligent conduct in remediating and repairing the member's unit. But cooperation from members in preventing mold in their units can help you avoid this situation.
Ask Members to Perform Simple Maintenance Tasks
Members can do their part to ensure that rainwater drains properly from their windows, outdoor balconies, or patios. Because they're in their units on a daily basis, they have the first opportunity to stop a mold problem before it gets out of hand. It's important for them to know that they can prevent mold problems using simple maintenance tasks.
For example, members can periodically vacuum their window tracks, which, like rooftops, have their own drainage systems. In sliding windows, drain holes are located at the bottom corner joints. Debris can obstruct these exits, causing leaks into members' units. Sometimes members or associations assume that leaks from windows indicate a much bigger leak problem, when simply clearing out the bottom window tracks will do.
Also advise members to keep their decks clear of debris. Patio and deck drains are small, and a deck with misplaced plants or stray leaves can obstruct the drains, resulting in leaks into their own or neighboring homes. You can use our Model Letter: Remind Members About Leak and Mold Prevention Tactics, to give members these maintenance tips.
Minimize Potential for Leaks
Take steps to avoid mold from forming. First, ensure proper drainage, which requires that excess water be correctly carried away or diverted from sensitive areas on roofs. For sloped roofs, sensitive areas are at the valleys where one sloped roof meets another, and other areas where water is channeled during rains. Any debris caught in the valleys essentially creates a dam, which can direct the moisture sideways and under roof shingles.
Sitting water on flat roofs can cause the roofing felt—that is, rolled paper-like material used for waterproofing—to break down. To prevent this from occurring, have a qualified service provider or maintenance worker remove all leaves and debris from rooftops at least twice a year, or more frequently, if there's a lot of greenery above the roofline.
Respond Promptly to Member's Complaint
After a mold problem is discovered, promptly take care of it. You'll have to decide on who should do the cleanup. This depends on a number of factors. One consideration is the size of the mold problem. If the moldy area is less than about 10 square feet, according to the Environmental Protection Agency (EPA), the job can be handled by a maintenance worker. But if the moldy area is larger than 10 square feet or there's a lot of water damage, the EPA recommends hiring a contractor who has experience to do this type of cleanup.
Keep in mind that you shouldn't use your own maintenance workers for larger areas or other cleanup responsibilities that they aren't specifically trained for. For example, take extra caution when water or mold damage was caused by sewage or other contaminated water. Rather than using maintenance workers or a general mold remediation service, the association should call in a professional who has experience cleaning and fixing buildings damaged by contaminated water.
Finally, if the association has health concerns about any mold issues, it should consult a health professional before starting cleanup.
EDITOR'S NOTE: Most association insurance policies don't cover mold-related damage and claims. To check your association's coverage, look in the “Exclusions” section of the policy to see if mold coverage is capped or excluded. If the association is willing to pay the price, it may be able to buy a special policy—called a “special pollution insurance policy”—that will cover mold.
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