PHA Not Liable for Negligence Regarding Mold Complaint

Facts: In 2001, a resident began renting a unit at a site owned and operated by the local PHA. In early February 2008, the resident requested that certain repairs be made to his unit and reported that mold was growing under the sink. The completed work order indicates that the mold was treated.

Between February 2008 and June 2013, the resident didn’t request any maintenance in relation to mold. But in late June 2013, the resident reported in an email that black mold was growing under the sink and that the PHA hadn’t adequately resolved the issue after his 2008 work request. The resident thereafter emailed information regarding mold remediation services and the potential health effects of mold.

In response to the resident’s report of black mold, the PHA hired a third-party environmental consulting firm to test his unit. The firm “did not identify any visible mold growth[,]” but noted “historic water staining on wood components and gypsum wallboard beneath the kitchen and bathroom sinks.” The firm evaluated the mold spores present in his unit and explained that the “[c]oncentrations of spores identified by laboratory analysis [were] consistent with settled spores in typical living environments and [were] not representative of fungal growth.” The firm recommended extensively cleaning the carpet, removing some areas of the wallboard to allow an inspection of the interstitial spaces, and offering to relocate the resident until his unit had been rehabilitated.

The PHA offered the resident alternative accommodations on July 2, July 19, July 24, and Aug. 2, 2013. The resident refused all offers of alternative temporary housing. The PHA arranged for the firm to return to the resident’s unit to complete a follow-up assessment on July 18 and July 22, 2013, but the resident refused to let the firm complete the assessment.

The resident didn’t pay his full rent in August or September 2013. He claimed that he was entitled to a rent abatement under the lease agreement because the PHA had failed to provide alternative accommodations. According to the rent abatement clause in the lease agreement, the resident would be entitled to rent abatement if the PHA didn’t correct a defect “hazardous to life, health, and safety” or to offer alternative accommodations. Rent would not abate, however, if the resident “fail[ed] to give written notice or reject[ed] reasonable alternative temporary accommodations . . . .”

The PHA sued to evict the resident for failure to pay rent, and the resident was evicted in late September 2013. Samples taken from the resident’s unit after his eviction tested positive for methamphetamine. After he was evicted, the PHA notified him of charges that he owed: $6,844.11 for damages, cleaning, and labor.

The resident sued the PHA for criminal negligence for failing to perform duties required by the lease agreement and by federal laws. In the resident’s lawsuit, he asserted that: (1) the PHA negligently failed to remove mold from his unit; (2) the alternative temporary accommodations were insufficient; and (3) he was evicted and charged for maintenance and labor in retaliation for requesting the reasonable accommodation of removing the black mold. HUD referred his complaint to the Washington Human Rights Commission, which conducted an investigation and ultimately concluded that there was not sufficient evidence to show that the PHA had discriminated against him.

Ruling: A Washington district court granted a judgment without a trial in the PHA’s favor.

Reasoning: The court found that the evidence didn’t support a cause of action for either breach of contract or negligence. The resident’s general assertion that no repairs were made to his unit is defeated by his own account of repairs that were done, even if they weren’t completed to his satisfaction. Also, the PHA submitted a completed work order indicating that on Feb. 8, 2008, the resident’s faucet was replaced and mold in the unit was treated. Finally, when he again complained of mold five years later, the PHA quickly instructed the environmental consulting firm to test the unit. Additionally, the environmental consulting firm’s report didn’t support the resident’s claim that treatment for black mold was needed.

• Smith v. Housing Authority of Kittitas County, August 2015