No Full Rent Abatement for Mold When Part of the Space Is Safe

What Happened: Among the victims of Hurricane Harvey, which swept through Houston in August 2017, was a testing services tenant’s relationship with its landlord. The tenant claimed that the mold spawned from Harvey’s rains rendered the office space unsafe for its employees. Citing the provision in the lease providing for rent abatement in the event of a “Hazardous Substance Condition,” the tenant didn’t pay rent for November, December, and January 2018. The landlord insisted that the premises were safe and sued for breach. The jury sided with the landlord and the tenant was ordered to pay $780,880 in damages for breach of contract and $412,589 in attorney’s fees.  

Ruling: The Texas appeals court rejected the tenant’s appeal. 

Reasoning: What the lease said was that the tenant could abate its rent proportionally “to the degree to which [its] use of the premises is impaired” by a Hazardous Substance Condition. Even if the presence of mold constituted such a condition, two professional companies conducted mold evaluations and tests finding that at least part of the tenant’s office space was safe for use during the months it didn’t pay rent. This evidence was more than ample to support the jury’s finding that the tenant violated the lease, the court concluded. The only good news for the tenant was that the court also held that there wasn’t enough evidence to support the jury’s reasonable attorney’s fees award.

• Intertek USA, Inc. v. Trical Commer. Invs., LLC, 2025 Tex. App. LEXIS 2906, 2025 LX 59417