Your big mold damage case is probably not as feasible as you think

Mold is a common problem in Western Washington given the precipitation and moisture.  Frequently, tenants / buyers / condo owners ask attorneys for representation against landlord / seller / HOA to fix mold and compensate mold-related damages, sometimes in exorbitant amounts.  The feedback as to the feasibility of the case, at least from this author, is not always encouraging to the potential client.

Is there a legal right to fix mold and, more relevantly, compensate for damages?  Yes, there can be. 

Under the RLTA, RCW 19.18, residential landlords are obligated to keep the premises habitable.  RCW 59.18.060.  And the RLTA specifically authorizes a damage claim against the landlord for diminished value of the unit.  RCW 59.18.110.  Supplemental claims for personal property or health damage, following breach of obligation by landlord, are not otherwise barred by the RLTA.

Sellers of real property can be liable for mold damage, under contract, through breach of specific sale warranties.  Sellers can also be liable for fraud by omission if mold was known and hidden in exchanged disclosures, such as the NWMLS Form 17.  RCW 64.06.050(1). Neis v. Woollett, No. 38877-8-III, 2024 WL 3580318 (2024) (acknowledging potential accrual of misrepresentation claim arising from Form 17). 

Finally, a condo association, under typical declarations / covenants / bylaws, has responsibility for maintenance of common areas.  A breach by the association, by allowing mold growth resulting in damage to private units, is likely similarly actionable.  It is unlikely an association can escape liability for its own breach under any governing document or state law.

Legal breach and damage notwithstanding, the practical issue is efficient prosecution of the claim.  A mold expert will likely be required for technical mold testimony, and they are expensive.  To the extent the claimant asserts health injury from the mold, a medical expert would additionally be required, which is another significant cost.  And expert testimony is far from a “slam-dunk.”  The claimant’s experts can be cross-examined and holes in theory exposed, especially if there are alternative explanations for health issues, or there was a failure to mitigate.  And the other side is permitted their own experts who will inevitably give opposite opinions. 

In sum, at least in this author’s opinion, mold damage cases are rarely feasible unless the evidence and damage is exceedingly strong and the claimant is prepared to outlay six-figures in attorney and witness fees and take the case to trial.  The economics of bringing a significant claim for mold damage, especially health injury, is just as important as legal viability.