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Tenant Rights to a Habitable Home: Mold and Smoke Issues

What can a renter do when their home becomes “inhabitable” due to mold or second-hand smoke?

When tenants sign lease agreements with building owners or landlords, they agree to abide by certain rules while living at the property, which protect both the tenant and the landlord.  In the US, certain tenant rights are protected under federal, state, and local laws.  For the purposes of this article, we are going to examine a tenant’s right to a habitable home.  

The “implied warranty of habitability” is the legal term for a renter’s right to a home that keeps out rain and snow, has sufficient hot water and heat, sturdy walls and floors, free from environmental dangers such as lead, asbestos and mold, and reasonable protection from criminal intrusion.  According to Nolo.com, all states except one (Arkansas) recognize the implied warranty of habitability.  Even if a landlord offers lower rent in exchange for the tenant “waiving” habitability rights, such waivers are typically not upheld in court.  There are differences between habitability problems and “minor repair” problems, though, so that landlords are not legally required to fix every problem that elicits a complaint. 

For purposes of safety and air quality, some habitability problems may be:

-a roof leak or plugged air conditioner drain that results in moldy walls

-improperly vented water heater that causes exhaust gasses to leak into the apartment/home

-neighbors that do things that cause you to be unhealthy, like smoke inside, make a lot of noise during sleeping hours, etc.

If the landlord does not acknowledge or repair the problem, there are ways that tenants can enforce the implied warranty of habitability.  If this applies to you, make sure that you have properly notified the landlord and given them time to respond, and then you may want to notify the local building inspector.  Be prepared, however, to move out if the inspector deems the problem causes your home to be uninhabitable!   “Bigger stick” actions for the renter include, depending on state laws:

• withholding rent
 (make sure you are completely up-to-date on rent before withholding it for habitability reasons)

• paying for repairs yourself and deducting the cost from the rent
 (also make sure you are completely up-to-date on rent before doing this)

• sue the landlord, or 


• move out without notice (break the lease) and without liability for future rent. 

To check whether your state has a precedent for withholding rent or paying for repairs and deducting them from your rent, you can check this page.  Here is more information about these options. 

Specific problems that constitute inhabitable spaces:

Although mold can be a serious health issue, there are no federal laws regarding permissible exposure limits or building tolerance standards for mold in residential buildings, and only a few states and cities have established guidelines regarding mold in indoor air.  (Nolo.com)  Because of the following, it has been difficult for tenants to get landlords to fix or compensate for mold:

• Mold causes a plethora of symptoms and health problems that are not exclusive to mold

• Blood or urine tests are the only way to confirm its presence in the body

• There is are many types of molds present in most homes and rentals, however, only a few have been implicated in serious health issues (such as Stachybotrus Chartrum or Aspergillus)

• The term “toxic mold” is not a legal term, but the above mentioned species are “toxigenic”, meaning that they can produce mycotoxins.  

There have been successful lawsuits; in 2021 a Florida jury awarded $48 million in a habitability/mold case. (TysonMendes.com)  This is an exceptional compensation, but the vast majority of tenants living with mold that causes health problems do not get any compensation, sometimes due to weak local and state laws on habitability.  For example, in Washington state there are no explicit protections from mold for tenants, and the law doesn’t hold landlords liable when they don’t provide the “mold addendum”. (whyy.org) Here are what legal experts recommend to make your voice heard (based on advice from a Virginia lawyer in this video):

• Make sure you notify the landlord or owner of the problem in writing and the way prescribed in your lease, and document all communication with them about the problem.  Describe the condition of the area, photograph it, include any lab results and any health effects that may have come from it.

• If the landlord does not respond or fix the problem, in Virginia you can file an official document called a Tenant Assertion and Complaint.  Definitely check with legal experts on your rights to withhold rent or move out (which as stated above, vary from state to state; withholding rent is not allowed in Virginia).  

• If you believe health issues have resulted from the mold, it’s best to contact a specialist or personal injury attorney.  

Second-hand smoke and vapors are a serious problem in multi-family dwellings.  This document from the American Lung Association and Public Health Law Center at Mitchell Hamline School of Law outlines tenant rights to healthy air inside their homes, and guidelines on options available to them in California, including:

1. Approaching the neighbor who smokes/vapes.  They may be unaware of the impact it’s having on you or your family.

2. Contacting the landlord, if the smoking/vaping doesn’t stop.  Always document your communication with the neighbor or landlord.  

3. Reviewing your lease and ask the landlord in writing to enforce the non-smoking clause.

4. Reviewing local laws, as they may have specific requirements to force landlord action. 

5. California allows withholding of rent, however this could trigger an eviction response from the landlord.  In this case, uninhabitable conditions is a reasonable defense, and if the landlord does evict, the courts will decide whether rent abatement is appropriate. 

6. Lawsuits include small-claims court, which is used for claims $10,000 or less, and trial court, which in general is only used when there has been substantial harm from repeated, significant exposure to secondhand smoke.  Appropriate charges against the landlord would include breach of contract, disability claims, nuisance claims, covenant of quiet enjoyment, and constructive eviction (if the tenant is forced to move out because of uninhabitable conditions).  

Should I move out of my home during mold remediation?

We get this question a lot from homeowners who have discovered mold in their homes and need professional remediation to remove it.  Should I try to stay while the mold is removed and my house is put back together, or find another temporary home?

There are several considerations in making this decision, and they’re not easy.  Sadly, mold remediation is not “elective” or optional once you find it and discover the extent of mold damage.  The traditional option of renovating “room-by-room” is not available here because if it has mold, it has to be remediated as soon as possible if you want to live in your home!  

Why should I move out during remediation?

First off, If you’re not used to putting yourself first, you need to consider the value of your health.  Staying in your home while mold is removed and materials are replaced simply may not be safe for certain individuals.  The following are just some of the conditions that make it safer to leave:

• Anyone diagnosed with Chronic Inflammatory Response Syndrome (CIRS) or Mast Cell Syndrome (MCS)

• A compromised respiratory system or respiratory illness like asthma, COPD, emphysema, cystic fibrosis or any number of similar conditions.  Why?  Small particles and mold released into the air can directly affect your lungs and can be extremely dangerous for immuno-compromised individuals.

• Heart conditions like arrhythmia, congestive heart failure, unstable angina, and any number of similar conditions.  Why?  Small particles and mold released into the air can directly affect your heart when they pass through your lungs into your bloodstream and can be extremely dangerous for immuno-compromised individuals.

• Mobility handicapped people and the elderly may find it difficult to perform more cleaning and move around areas under construction

• Work-from-home employees:  construction noise can be distracting and unproductive

• Families with young children and/or pets  Even with protective barriers between you and the construction, you may find that your living space has increased dust on all surfaces, danger of children and/or pets getting into construction zones,  and construction noise from 7am on any time during the workday.

Secondly, most remediators will say that moving out is the best option to minimize time and labor.  According to Anna Williams, founder of Your Beautiful Home, there are multiple reasons.  If you live at home during the work, the construction crew will have to take extra care to clean up each evening before leaving, as well as pack up their tools.  This takes at least 30 minutes in the evening, plus time in the morning to unpack tools. (Move out during renovation or live through it? That is the question!)  Also, they may not have the easiest access if you are living there, for instance walking and carting tools to the back door to avoid your living space.  So, making it easier and quicker on the remediators means less time and money spent.

And of course, if the remediation requires extensive gutting to your home, it may be just too inconvenient to try to live there.

If you decide to leave, family and friends usually have the cheapest “rates” of any accommodations, but will your relationship survive the remediation?  If your contractor has a reputation for completing projects on-time, staying with family may be a good option.  Alternatives include:

• Vacation rentals like Airbnb and VRBO

• Extended stay suites

• Sublets

• Corporate housing/short-term rentals (contact a corporate housing agency)

If you move out, you’ll want to make sure to do the following:

• Store food items in airtight bins

• Discuss power requirements and when the power will be cut off (will it affect your freezer/any other climatization?

• Place plastic dust covers on furniture, clothing and carpets if possible

• Secure any areas of the home that contractors don’t need to access, take or lock up valuables

• Notify your home insurance and security company

• Check the “containment” that the contractor has set up.  Be sure to discuss your HVAC system, which can broadcast mold and dust throughout your home if it’s not secured!  If temporary ventilation is needed during extreme heat or cold, the contractor should be able to provide it.  

• Plan for extra weeks or months in case the remediation schedule doesn’t proceed as planned.

Why should I stay?

Finding alternate accommodations can be stressful if you have to stay with others, or expensive if you have to pay for a rental for your family.  For these reasons, many decide to stay at home.  Homeowners who decide to try to live in their home during remediation should know about the stresses they may endure!  It’s not easy to have workers coming and going through your personal space.  Here are just a few considerations:

• Increased dust throughout the home

• Increased noise during workdays

• Temporary (or prolonged) power and water disruptions

• Ventilation during extreme temperatures

• Child safety

• Parking issues–will there be many vehicles and/or a dumpster parked in front of your house?

• Access to your kitchen

• Access to at least one bathroom and shower or tub

• Access to laundry facilities

• Sufficient clean space for your family to sleep

• Sufficient space to work if working from home

• Delays to the schedule may make the remediation longer than expected

It’s a lot to consider.  Of course, make sure you have as many options available as possible before deciding, including knowing if your insurance will pick up any of the cost for relocation.  If not, you can check with local, state and federal agencies for assistance.  

Staying at home during a mold remediation carries an extra risk: airborne mold.  For this reason, we recommend purchasing extra HEPA filters to place around your living area and portable air sanitizers like the Air Angel and Germ Defender.  Containment of dust and mold spores has to be top-notch–make sure that the contractor follows all safety standards for containment!

Working with the contractor on setting a budget and timeline should be a top priority.  Many contractors may think that delays are acceptable if the homeowner is living in the home or with family–after all, you won’t be paying rent–but make sure that this is not their mindset by including deadlines in the contract, and penalties or cost reductions if they are not met.

By all means, ask for help whenever you can.  Whether it’s taking a weekend getaway break, taking vacation during the remediation, asking for help with children and pets, or having dinner with friends more often, you’ll need to pace yourself so that your health and your relationships aren’t “gutted” either!