Habitability Issues
Case # 2: Habitability Issues:
Tenant v. Landlord* (* note: case specifics not given to preserve confidentiality)
Some attorneys are inclined to view habitability cases as hardly worthy of their time and expertise. These are sometimes seen as borderline frivolous: tenants squabbling over dripping faucets and the like. A not uncommon response in years past was to swat these lawsuits away, the way we might swipe at an irritating fly. A recent $1,300,000 award to a tenant in a Sonoma county trial (which was not only upheld on appeal but included $750,000 in attorney’s fees) has gone some way to dispel that notion.
Habitability lawsuits are something of a sleeping giant— the tip of an iceberg that is, surprisingly enough, not merely drifting in some remote ocean, but is chained to a nuclear submarine few can see. That submarine represents the rapidly changing attitudes of cities, counties and the California State legislature, as regards their response to sub-standard housing.
Twenty years ago, discovery too for some of these cases seemed little more than sleeping pills for insomniacs. After reading through a couple of depositions from tenants and landlords about leaky toilets and malfunctioning water heaters, you could find yourself battling a condition that George Will described as “MEGO” (My Eyes Glaze Over).
Not any more. Habitability suits often appear to be deceptively simple at first glance, but contain surprisingly complex issues, requiring serious analysis and research to uncover. The case mentioned above contained all those elements. We were called in to evaluate the apartment in question and eventually to testify at trial.
From the outside, this apartment looked as if it was in good repair. But on the inside, some of the west facing exterior walls had extensive mold present. In particular, one living room wall was particularly bad. The defense argued that excessive use of showers and lack of ventilation resulted in a higher than normal amount of moisture vapor in the air, leading to condensation on cooler exterior walls. This condensation— especially in winter— then provided ideal conditions for mold growth. This perspective is a familiar defensive posture and one that has worked well in previous decades. Juries have seen this as not unreasonable and the poor tenant is left confused and floundering. They even had a seasoned expert support and endorse this view, who then went on to say that property owners had little or no control over how much moisture vapor a tenant could pump into the indoor environment of a dwelling— and therefore, the consequences of a tenant’s personal choices were not really the responsibility of the landlord.
Although this certainly appears to have validity, the issues behind moisture condensation and mold formation are actually quite complex. The study of how moisture vapor acts at different temperatures and air pressures is called Psychometrics. Think of moisture condensing on the outside of a glass of ice water on a summer’s day and you can see how dramatically temperature impacts something we never really think about. To add further complexity, the movement of moisture vapor is also influenced by the material it contacts and penetrates, barometric pressure, the presence (or absence) of solar radiation, mechanical heating and cooling, thermal conductivity and building maintenance.
In this particular apartment, we were able to obtain photographs of repairs performed some years before. We compared these to current site conditions, studied weather patterns, performed air and surface mold testing, in addition to a thorough examination of the apartment itself. One of the more significant details was the presence of a hose bib whose supply line came up through the slab at the west living room wall and then exited the exterior wall covering. By careful examination of moisture levels around this area and mold patterns, it was possible to establish that this hose bib had a very slow leak, and had been leaking for two or three years.
Three other significant issues often influence mold growth— or the lack of it. These are firstly, the type of heating a dwelling has. Older units often have wall furnaces that are technically incapable of delivering adequate heating to a unit on what is referred to as a “design heating day.” These wall furnaces are usually placed at some central location, leaving exterior walls too far removed from an effective heat source. This lack of heating is further compounded by poor or entirely absent insulation within wall cavities. Without going into complicated details, the thermal gradient from the inside of a wall to the outside is much steeper on an uninsulated wall. That encourages condensation, and promotes mold growth. The third factor has more to do with building maintenance. Typically, an older apartment or residence will experience one or two complete air exchanges per hour. In other words, the entire interior air content will leak out and be replaced by outside air, drawn in through gaps under and around doors, through ceiling vents and electrical outlets. Although very little air actually penetrates a typical interior wall surface, moisture condenses, seeps in through paint pores and microfiber channels created by mold, then continues to work its way either to the outside, or in reverse, depending on prevailing weather, the degree of permeability of exterior wall finishes, and any other relevant factors. In this particular unit, the steady drip of a leaky hose bib supply line within the wall cavity dramatically increased overall moisture content, with the result that the wall was black with mold half way up— and no one one really knew why.
Unfortunately, as the EPA has recognized, (and now explains on their web sites), certain types of molds can be quite toxic and the jury recognized that the tenant had very little to do with the presence of mold. During trial testimony, we were able to explain, with supporting documentation, exactly what was happening in those walls, why the thermal gradient was such as to promote mold growth, and that the property owners, through not understanding and investigating the issues, had allowed a tenant with severe asthma problems to endure some years of extreme distress.
Not all habitability claims include issues relating to mold, but in recent years, building departments, counties and state legislative bodies have “woken up” to the risks of ignoring the consequences to tenants of living in sub standard housing. Much of that awakening has come about as a result of recent medical research that has demonstrated quite clearly that ignorance is not bliss. Toxic molds, lead-based paint, fecal contamination in bathrooms and around septic systems, polluted water supplies, improperly vented heating equipment, and vermin born HPS (Hantavirus Pulmonary Syndrome) can all lead, not just to uncomfortable living conditions, but injury, and in some cases, death.
Based upon our involvement in many of these lawsuits, I am inclined to think we will see, not only a rapid increase in these cases, but a vast expansion within medical literature, demonstrating that many of these issues are far more serious than anyone believed just twenty years ago.