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The following hypothetical facts are based on real life examples of mold problems.

Charlie wants to buy a home. He signs a contract with a home inspector. The inspection reveals no problems.

After closing he moves in and starts to develop real bad respiratory problems. An expert finds mold in the attic. The mold appears to have been bleached and painted over.

The crawl space is loaded with mold. It will cost $75 thousand to perform necessary repairs. Meanwhile, Charlie believes that the house makes him sick and he wants to move out. But he can't afford both a mortgage and rent.

So he visits an environmental lawyer.

That's where someone like me comes in. When clients come to my office with mold problems, often they do not feel well and they need some kind of relief. The kind of relief that may be available depends on the facts of the particular case and the laws of host state.

First, it may be helpful if Charlie places his insurance company on notice. While some policies exclude mold claims, they all do not. And it costs no more than the price of a stamp to file a claim. If Charlie waits too long to file a claim, that may void his claim. So if he is going to file, he may want to do so promptly.

The seller may have legal responsibility to Charlie, especially if the seller did try to cover up the mold problem. In some states, this might support a fraud claim or similar kind of claim. These kinds of cases can be difficult and costly -- but the option may be viable.

Many real estate contracts are "as is /where is" with no representations. This means a lot of things but in the case of mold, it may mean that unless the seller committed fraud or something that comes close, Charlie may not have a strong claim against him.

If the seller is going to be sued, watch for statute of limitations issues. Charlie must file before the limitations period is over or Charlie's claim may be lost. This kind of lawsuit is serious business that just about always requires the service of an attorney who understands this law in Charlie's state.

Some times real estate professionals have liability in these cases. Though the basis for liability may vary, generally a real estate sales person may be liable in the case of misrepresentations or material fact omissions. So the question may hinge on whether the real estate salesperson made any statements or claims to Charlie about the mold issue. In certain instances, failing to disclose may also subject the real estate sales person to legal exposure.

As to the home inspector, Charlie may have a claim against the inspector if the inspector was negligent. Charlie may claim that by not identifying the mold, the inspector didn't do his or her job properly, or breached the inspection contract.

But Charlie shouldn't get too confident about this claim. These kinds of cases are very fact sensitive and usually not easy to win. And the contract that the inspector made Charlie sign before the inspection may limit the inspector's legal liability even if he or she did mess up.

If this situation is making Charlie ill, he may have to move out for two good reasons. First, moving out may make him feel better. Second, Charlie's state may have a duty to "mitigate," which means he needs to take measures to reduce his harm -- which may mean moving out of the house.

As to the illness claim, if Charlie wants to pursue it in the courts he may have to prove the mold made him become ill. That may or may not be an easy task. And even if this can be proved, it may be that Charlie had pre-existing allergies that made him prone to be ill. It also may be, at least hopefully for Charlie, that if he moves out all of his symptoms will disappear or get much better.

If Charlie's home is new and covered by a warranty -- he ought to check that warranty. That may help pay to resolve this problem as well.

If he has to sue, he will likely seek recovery of his out of pockets costs, costs relating to any actual illness he suffered because of the mold, and future costs, such as costs to repair. In certain instances, Charlie may also be entitled to punitive damages -- which means damages needed to "punish" the wrongdoer. Some cases may also entitle the plaintiff to a return of his or her attorneys fees.

In conclusion, no one ever wants to find out that their new home has a mold problem. And in this case, the fact that a home does have mold, does not automatically mean that Charlie will be guaranteed a right to sue any one. However, in certain instances, mold discovery does require resort to litigation. In other instances, insurance policies may provide Charlie with an ample response.

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Daryl's Avatar
Daryl replied the topic: #12034
You can't expect a home inspector to find mold problems if they're not visible during the home inspection.
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