Mold can cause health problems, spur extensive litigation between tenants and landlords

Mold can cause health problems, spur extensive litigation between tenants and landlords

Source: San Diego Union-Tribune, January 6, 2018
Posted on: http://www.advisen.com

Ashley Powell was 25 and starting a new job when she moved into the Scripps Landing apartments, sight unseen. The first thing she noticed when she stepped inside was the carpet.

“I’m not talking damp. I am talking soaking wet,” said Powell, now married and known as Ashley Douthit.

An earthy, muddy scent permeated the apartment, Douthit said. She was struck by sneezing fits and spied what looked like mold in the windows and closet.

“My lungs started closing up and I started developing breathing issues as well as breaking out in rashes all over my body,” she said.

Douthit vacated the apartment within days and later filed a small-claims lawsuit to recover moving costs from her landlord, the H.G. Fenton Co. The case was dismissed, she said, because she had not thought to test for mold.

“Unless you have a mold report, you can’t prove anything,” she said.

Douthit and Fenton are by no means the only tenants and landlords facing mold problems. According to court records and interviews, numerous San Diego developers and property managers have been sued for mold intrusions. Plaintiffs allege serious health problems and even death.

Fenton says it responds to every situation appropriately and effectively.

“In our business, this (mold) is a serious subject,” said Michael Neal, the Fenton president and chief executive officer. “We try to go in and fix the problem — not the surface, if you will.”

Mold is naturally occurring in the environment. It can grow as a result of leaky plumbing or windows and roofs that let moisture inside when it rains. Fenton said its response to moisture-related calls from tenants often exceeds industry standards.

“We regularly make improvements at our communities designed to reduce moisture-related problems,” it said. “Due to the many causes that can lead to mold-related issues, however, effective management requires that any issue brought to our attention by a resident be evaluated on an independent basis in order to find and resolve that specific situation.”

To be sure, any organization that manages thousands of apartments and millions of square feet of commercial space is destined to be the target of complaints by some tenants. Fenton properties in Tierrasanta and Mission Valley also have been the subject of mold-related lawsuits.

Fenton officials “were aware that water damage and mold constitute a health hazard and can result in a breach of the implied warrant of habitability,” a 2012 lawsuit against the company alleged.

The case was filed by then-Fenton Tierrasanta resident Vanessa Terry, who claimed she was forced to evacuate her apartment after suffering toxic allergies and infections as a result of the mold.

Terry claimed Fenton made cosmetic repairs but never fixed the source of the problem.

“Defendants were aware that the home suffered from long-term moisture intrusion and mold problems prior to renting it to plaintiff,” the complaint said. “However, defendant did not disclose these problems nor fully and properly repair them prior to plaintiff renting the home.”

The Tierrasanta suit was dismissed the following year at the request of the plaintiff, court records show, meaning the case was likely settled privately.

Health threat

According to federal health officials, mold can cause asthma and other respiratory problems in healthy people — and more severe symptoms in children and others with compromised immune systems.

Establishing a definitive link between exposure to mold and ill health can be elusive. The adverse physiological effects can take years to turn up, and even when they do it is not always clear that mold is the culprit.

Fenton understands the threat and adheres to a strict protocol once mold is reported, said Neal, the company president. Property managers dispatch an in-house crew to respond to complaints within hours and bring in outside experts when need be, he said.

The company willingly pays to move residents into hotels or alternate quarters through the course of any needed repairs, Neal said, but even their best practices do not prevent every moisture intrusion.

“We can’t control the housekeeping aspect,” he said.

Although mold complaints represent less than 1 percent of its service calls, Fenton said moisture issues are not uncommon in residential communities because plumbing can leak, windows get left open or water otherwise makes it way inside.

To answer those calls expeditiously, the company runs a robust training program for its maintenance staff — four hours for every new employee and remedial education for veteran workers.

The classes are held monthly in a maintenance shop underneath Friars Road, just west of an underpass connecting Fenton’s Portofino Apartment Homes to the Fenton Marketplace shopping center.

Inside, there are demonstration toilets, appliances, windows and mock drywall stations with holes cut through to expose copper piping — instructional aids designed to help teach workers the science of leak detection and repair.

There’s also a classroom area where workers are taught how to use equipment like HEPA vacuums, or high-efficiency particulate air filters, which help remove mold spores and other dangerous material from internal living spaces.

“We put all new hires through the program and our recurring employees come back for refreshers,” maintenance manager Benito Teran said during a recent tour.

Mark Riedy, who directed the Burnham-Moores Center for Real Estate at the University of San Diego for more than 20 years, said property owners who receive multiple mold complaints in the same building need to address the root cause of the intrusion.

“Common sense and a sense of responsibility would say you re-do the whole building,” Riedy said.

Repairs should be based on long-term outcomes — not immediate costs, he said.

“The best practice is you respond to a tenant problem and you fix the cause,” Riedy said. “That may be the most expensive, but if you’ve got an issue with a building that affects a lot of units you have to bite the bullet and fix the problem.”

‘Extremely distressed’

When Cynthia Norman reported mold in her Solana Highlands apartment, Fenton denied there was a problem, she said in a 2014 lawsuit. Then it hired a consultant who found no evidence of contamination.

Norman, who had been diagnosed with an autoimmune disease that qualified her for disability benefits and reduced-cost housing at the Solana Beach complex, said in her lawsuit that she was not the only one to register concern about the condition of the property.

“Many tenants have complained to defendants about the presence of mold in their apartments and illnesses consistent with exposure to mold and other indoor air pollutants,” her lawsuit said. But the “defendants denied there was a mold problem to manipulate plaintiff into believing that none existed.”

Norman’s lawsuit said the experts Fenton hired conducted a “sham investigation” of her mold complaints and insisted “the air quality within the residence was fine.”

Norman settled her complaint in 2016 for an undisclosed amount of money and agreed never to discuss the terms publicly.

Emily Chiappara is another former Fenton tenant who was unhappy with her accommodations. According to a lawsuit she filed recently, Chiappara leased an apartment at Scripps Landing for herself and her three children in March. Within weeks she reported a leak to the manager and complained that her kids were showing symptoms of ill health, the lawsuit said.

Fenton paid to house the family in a hotel and called in experts but by early July, a lawyer for the company told Chiappara the remediation was finished and testing showed the apartment was habitable once again, according to letters she provided to the Union-Tribune.

“All results were within acceptable levels and the residence obtained clearance within industry standards,” attorney J. Paul Lewis wrote to the tenant.

Chiappara was not convinced. She hired her own inspector and got a different result.

“Mold Safe Solutions reported elevated levels of mold spore counts and dampness,” Chiappara said in a sworn declaration. “I have been extremely concerned about the health and wellness of my children and I.”

Chiappara took her kids and moved to Poway, with her parents.

Not only Fenton

Fenton is not the only developer or property manager to confront mold complaints — or litigation.

San Diego Superior Court records are rife with allegations of landlords failing to properly respond to such reports, although a review by The San Diego Union-Tribune of complaints dating back 10 years found no other major developer with as many mold-related allegations as Fenton.

The parents of a toddler in Escondido sued their landlord in 2014 after repeatedly complaining that mold was growing on the bedroom and bathroom walls in the unit they rented at the Citrus Court Apartments.

“Defendants hired workers on their behalf who removed the mushrooms, but the mushrooms grew back,” the complaint stated.

Milorad and Ljiljana Vuckovich filed their lawsuit in December 2014, two months after their 3-year-old son, Danilo, died from a sickness his parents blamed on the mold. They said the landlords knew about the danger and rented to their family anyway.

The defendants, owners 485 Citrus LLC, Starvest LP and David W. Yancey, among others, settled the case for $2.2 million in 2016, although they spent two more years in litigation over the various amounts each defendant would pay.

Ana Duenas alleged in a lawsuit last year that her landlord and property manager knew about a mold problem in her unit at the Wildwood Apartments just off Palm Avenue in south San Diego when she moved in 2015.

In her complaint, Duanas said she grew more and more ill over the months, before requiring a surgery to remove sinus polyps. She found out later that a broken water heater had saturated the drywall of her unit and it had not been replaced.

Owners Wildwood Apartments LLC and property managers Sunrise Management Co. denied any liability or negligence. The plaintiff filed a request for dismissal in April, usually indicating an out-of-court settlement.

Starting over

Susan Carre has been mired in a court scrum with Fenton since 2013.

Carre lived at Solana Highlands for three years before leaving in 2013. According to her lawsuit, mold and asbestos inside her apartment made her sick and her oldest daughter even sicker.

“On more than one occasion, defendants sent unqualified and improperly trained maintenance personnel to investigate and ‘remediate’ the mold,” her complaint alleged.

The single mother obtained records in the discovery process that show she leased her unit just months after the former tenant complained of mold, then moved out. Her older daughter has experienced persistent health issues since she lived at Solana Highlands, the lawsuit said.

Carre, who sued in 2013 and has been through several lawyers, is now litigating the case herself — an effort that has turned into full-time work. She is awaiting a hearing in January.

Despite rejecting allegations in the Carre lawsuit, Fenton is planning to demolish Solana Highlands and start over.

The company designed a whole new complex on the South Nardo Avenue property, 260 units scattered across two dozen two- and three-story buildings. The redevelopment includes 62 new apartments and will feature a clubhouse, pool and barbecue areas.

With a handful of conditions, the Solana Beach City Council approved the project at a public hearing Dec. 17.

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