I've been asked to share with you any medical, scientific,
and legal wisdom I have regarding mold. Don't worry, it won't
Let's start with the medical part. Mold is everywhere, and
there are thousands of kinds. Most molds can cause trouble for
people with allergies, but a few molds are also toxic. Some of
the worst are members of the aspergillus, penicillium, and
stachybotrys families. Stachybotrys has gotten a lot of press
because it attacked the homes of several high-profile victims,
including Erin Brockovich. The resulting lawsuits got the
insurance industry worried about paying claims and led to much
higher insurance rates.
Unfortunately, there is no consensus among experts about what
levels of mold-spore concentrations are acceptable inside a
house or even which species of mold cause the most problems.
According to some medical researchers, the types of mold
mentioned above are a life-threatening danger to small
children, the elderly, and people with impaired immune systems.
The symptoms of a reaction to mold often resemble those
associated with asthma but can also include rashes, fatigue,
nausea, and vomiting. In severe cases, people have died because
their lungs were bleeding.
Here's the scientific part. What enables mold growth?
Moisture. I bet you already knew that. There is no mold without
moisture. Does that mean every moldy building has leaks? Not
necessarily. You can get moisture through condensation, which
is one of the reasons there have been more problems since we
started constructing airtight buildings.
Suppose you're being sued because a building you worked on is
now full of mold. Are you going to wind up paying big bucks to
a kid with asthma? Maybe. Maybe not. Legally, there are very
few definitive answers to that question.
So, what exactly are you supposed to do about mold? Again,
there are no good answers. No one can tell builders exactly how
to prevent mold. No one can tell them how much mold is too much
mold. And there are no national mold standards.
Existing Legal Standards
Fewer than 10 states have adopted mold standards. There is a
federal bill concerning mold, but it's still being debated in
Congress, and the likelihood of an agreement is small.
This is a case in which people who don't like government
regulation may want to reconsider their position, because
there's substantial legal protection in being able to say, "I'm
sorry you're sick, but I did what the law and the regulatory
agencies required me to do."
Asbestos is a good example. There are specific legal standards
that spell out how much asbestos is allowed in the air and what
you're supposed to do if you find asbestos in a building.
Because asbestos standards exist, asbestos isn't the big legal
problem it once was.
Insurance problem. When it comes to
mold, about the only thing I can say with certainty is that
your insurance company has probably excluded mold problems from
your coverage. In other words, if you're sued for mold damage,
forget your insurance: You're on your own. Insurance companies
don't want to deal with mold because the legal answers are
still so uncertain.
How to Protect Yourself
There are steps you can take to protect yourself —
and if at all possible, you should take every single one of
Use disclaimers. In their
warranties, your insurance company and your material suppliers
disclaim responsibility for mold. You should, too. First,
include language in your contract that limits your liability
for mold problems to those you created yourself by not meeting
industry standards or not following the plans. The reason I
don't suggest excluding every single mold problem is that
judges and juries are more likely to ignore that broad,
boilerplate language than they are to ignore language that is a
genuine effort to limit your liability to the problems you
Whatever you say, don't forget to include language that states
you're not liable if you built according to the design and
standards given you by the owner or the architect.
Follow industry recommendations. Second, be
aware of industry recommendations about moisture abatement and
water infiltration, and unless you're living in a very dry
climate, follow them.
Actually, after reading some of the lawsuits out of the
Southwest, let me amend that advice: Follow the recommendations
regardless of how dry it is where you are. This means that
whenever you install a building product, you need to read and
follow the instructions. If the installation of this product
leads to mold growth, you might be able to shift some of the
blame to the manufacturer, but only if you followed the
Disclose and document. Third, don't limit yourself to advising
the homeowner about potential problems with only the parts of
the building you are working on. If you're working on an
existing building, you should document every water infiltration
and condensation problem you find.
For example, if you're replacing a window and happen to look
up and notice moisture damage from a past ice dam, tell the
owner and architect. In fact, tell them in writing and mention
that the conditions you observed can lead to mold problems. Be
sure to keep copies of these notifications for yourself. If
mold is discovered after you work on a building, you want to be
able to prove that it was there before you started.
Why would I tell you to be so careful about something that
isn't even part of your window-replacement job? Because you
were up there and you saw the problem, and at this time, the
legal outcome of mold lawsuits is in such a state of flux that
it's impossible to say with certainty who will be left holding
the bag. All we can be sure of is that it won't be the
Story has practiced and taught law for
more than 25 years. She is the author of The
Contractor's Plain-English Legal Guide