Condo Media - April 2020 - 30

WANT TO Keep MOLD OUT ?
Owners are not always the "innocent
victims" of water and mold damage,
Moriarty points out. Sometimes the water release originates within an owner's
unit-worn dishwasher or washing
machine connections and failed hot
water heaters are among the most common causes, Carr says. As long as board
negligence isn't an issue, owners will
typically be responsible for mold remediation and repair costs in their units.
The legalization of marijuana in
many states (including Massachusetts,
Vermont and Maine) is creating a new
mold threat in condominium communities, now that owners can legally cultivate marijuana plants without running
afoul of anti-drug laws. The conditions
required to grow marijuana (heavy watering and high humidity) are also ideal
for mold-one reason, although not the
only one, that many attorneys advise association clients to prohibit marijuana
growth in their communities.

MOLD AND THE
NUISANCE PROVISION
Boards have the authority, and, arguably
the obligation to prohibit owners' actions that create a "nuisance" adversely
affecting the health of other owners
or their enjoyment of their homes.
Most condo documents specifically
prohibit nuisances, and growing marijuana plants is an obvious example; but
growing large quantities of plants of
any kind in a greenhouse atmosphere
could create mold in one unit capable

30

CONDOMEDIA April 2020

of spreading to other units or common
areas, through the walls or through the
air, by entering the ventilation system.
How do boards deal with owners
whose behavior is creating mold, or mold
risks, for others? "Historically, a board
might have told owners to work it out
themselves," Moriarty says. "But that
position is less likely today because the
development of case law [suggests] that
boards have an obligation to prevent
owners from harming others." Under
that legal theory, boards could be held
liable if they don't take steps to prevent
mold from spreading to other units.
Boards should deal with mold as
they would deal with any violation of
the nuisance provision in their governing documents, Moriarty suggests:
Start with a request that the offending
owner cease the nuisance behavior;
impose a series of escalating fines if
the owner refuses; attach a lien, "which
gives teeth to the fines," Moriarty says.

And if necessary, ask a court to
enforce the nuisance provision, for
example, by ordering the owner to
fix a leak that is causing mold to
grow in the unit below.
There is no guarantee the court
will approve that request, Moriarty
notes, but the board can argue that it
did all it could to deal with the problem. "That will provide a defense for
the board if it is sued," Moriarty notes,
"but it won't provide any help for the
owner below."

MOLD RESOLUTIONS
Boards concerned about mold-related
liability risks can mitigate those risks, at
least to some extent, by adopting mold
resolutions, which:
 tate that owners have an obligation
S
to maintain their units (to prevent
mold) and to report any water intrusion to management or the board; and
 Specify that owners are responsible
for preventing mold risks in their
units and liable for any mold damage
to other units or common areas resulting from their failure to do so.
It is best to make the mold resolution a bylaw amendment approved by
owners, Moriarty says, but a resolution
enacted by the board "is better than
nothing," he believes. "It provides
documentary evidence that the board
has identified mold as a 'nuisance' and
notified owners of their obligation (to
prevent mold growth in their units) and
their potential liability for mold damage
for which they are responsible."
Mold resolutions have another benefit, Moriarty says: "They may increase
owner awareness of mold risks and
encourage them to comport their
behavior accordingly."
DON'T COUNT ON INSURANCE
Proper maintenance and a prompt response to water intrusions or evidence
of them can reduce mold risks, and
mold resolutions can strengthen the
defense of boards sued for failing to
prevent mold damage. But insurance
won't necessarily cover either the cost
of remediating mold or the property
damage resulting from it.
Most condominium association master policies specifically exclude coverage
for mold damage, Gregory Pierce, CPA,
LIA, senior vice president at NorthStar
Insurance Services, Inc., explains. The
HO6 policies covering interior portions
of owners' units not covered by the master policy and owners' personal property
also typically exclude coverage for mold
remediation and mold damage.
Condo Media - April 2020

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