Caselaw suggests mould can be a deficiency that affects whether a property is fit for living in. But who’s responsible for it?
We recently heard about a tricky situation involving mould in a rental property. During a property inspection, the landlord found severe mould in the unit. The tenant apparently never said anything to the landlord about the mould. The remediation was going to be costly and take months.
The situation got me thinking of a few questions, including:
- Who is responsible for mould in a rental property?
- Does a tenant have to inform their landlord about mould in a rental property?
- What can a landlord or tenant do if there’s mould in the property?
Mould, otherwise known as mildew or fungus, is a living organism. The Environmental Public Health, Alberta Health Services website notes mould grows indoors in places that have water leaks, are very humid or have condensation problems. While mould usually doesn’t make people sick, there’s a higher risk of health problems if there’s more of it in places a person spends a lot of time in – for example, at home. Mould can cause health problems including asthma flareups, itchy skin, stuffy nose and blocked sinuses, breathing problems, and irritation of the eyes, nose and throat.
Whenever we get a question about mould on a property, we direct people to the Minimum Housing and Health Standards and our publication. The Minimum Housing and Health Standards set out specific conditions that are essential to making a place safe, sanitary and fit for human to live in.
The Standards do not explicitly cover mould on rental properties. But, a review of caselaw suggests that mould can be a deficiency that affects whether a property is fit for living in. It can also be a deficiency that affects a tenant’s benefit of the residential tenancy agreement and right to enjoy the property.
Who is responsible for mould in a rental property?
Property owners/landlords are responsible for maintaining rental premises to the minimum standard. If the property falls below standard, they must fix it. Failing to meet the minimum standard is a breach of the Residential Tenancies Act (RTA). When a landlord breaches the rental agreement or RTA, the tenant has several remedies including:
- recovery of damages
- rent abatement (reduction)
- compensation for the costs to fulfill the landlord’s obligations
- termination of the lease
Extending this line of thinking to mould means property owners/landlords must fix mould problems on a rental property. That said, this brings us into the next question.
Does a tenant have to inform their landlord about mould in a rental property?
The RTA says tenants have a general responsibility to maintain the premises and keep it in a reasonably clean condition. We also know that landlords must maintain the premises to the minimum standard. This is where things get a little fuzzy, especially where a tenant knows about an issue in the property but does not say anything about it. How is a landlord supposed to fix a mould issue if the tenant doesn’t say something about it?
Brown v. Libertas Property Management Inc., 2011 ABPC 148 sheds some light on this type of situation. In the case, the tenant claimed $1,495 for return of the security deposit, $3,040 in rent abatement and $3,000 in general damages based on several alleged breaches by the landlord. One issue involved water damage from a toilet leak, which led to mould/mildew growth in floor tile. The mould then caused or contributed to the exacerbation of the tenant’s asthma. There were many other problems with the property including the loss of use of the basement bedroom and failure of the landlord to install a screen or repair the deck.
What’s most interesting is what the judge said about the tenant’s responsibility for informing the landlord about the mould: “[Moulds] and mildews have typical appearance and smell. They occur commonly and are within the experience of many people.”
The judge found that the tenant was aware of the mould but failed to tell the landlord. The judge decided:
- The tenant should have advised the landlord when they became aware of what they thought was mould.
- The tenant could and should have taken some action of their own to prevent the mould from becoming a problem, which they did not.
- The tenant was in possession of the house and needed to maintain it. Even if the landlord knew of the mould but failed to act, the tenant should have acted on their own.
- Failing to advise the landlord of the mould and take any steps to deal with the mould situation contributed to the problem and the damages suffered by the tenant.
- The water leak, broken tiles, and mould affected the amenity of the house and contributed to the loss of the benefit of the tenancy agreement. Rent abatement (reduction) was appropriate.
Considering the landlord’s breaches and the tenant’s losses, the judge assessed the tenant’s damages and rent abatement at $1,000. The judge dismissed the claim for general damages for anything other than the breaches of the agreement and the rent abatement. The judge ordered the landlord to pay the tenant $2,495 for the return of the security deposit and for damages.
What can a landlord or tenant do if there’s mould in the property?
If the RTA and caselaw have taught us anything, it’s that tenants should tell their landlord about issues on the property right away, including mould. Doing so allows the landlord to repair and fix the issue. As best practice, landlords and tenants should document and put in writing any remediation arrangements. For example, this may include:
- whether a tenant will be moving out during repairs
- how much the landlord pays for repairs
- whether the landlord offers any rent abatement (reduction)
- whether the tenant must take remedial steps or pay to fix the problem themselves
As mentioned in CPLEA’s Minimum Housing and Health Standards publication, a tenant can take additional steps if a landlord is not fixing problems on the property. One option is contacting a local Environmental Public Health Office.
As for any circumstances that may make a mould situation contentious– well that involves findings of fact for the RTDRS or courts to decide.
Looking for more information?
Visit CPLEA’s Laws for Landlords and Tenants in Alberta website. Or check out these LawNow articles:
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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