I represent a lot of residential tenants who discover mold in their leased apartment or house. Unfortunately, I see the following problem frequently: Imagine that you lease an apartment for a one year term. In your second month, you discover mold within the apartment. You notify the landlord of the mold, but the landlord refuses to remove the mold. What can you do?

Many of my clients want to pack their things and exit the property before the lease term ends. But wait: it is possible that breaking the lease early will harm the tenant’s credit, or cause the tenant to be liable for future rent payments.

Alternatively, many of my clients want to stop paying rent until the landlord remediates the mold. But this can create a serious problem. In North Carolina, there is a statute stating that a “tenant may not unilaterally withhold rent prior to a judicial determination of a right to do so.” N.C. Gen. Stat. 42-44(c). In other words, arguably a tenant cannot refuse to pay rent because of a landlord’s failure to provide a safe home. That said, there is some case law arguably providing that, if a tenant withholds rent, the dangerous state of the leased premises may serve as a defense to an eviction action. Surratt v. Newton, 99 N.C. App. 396, 393 S.E.2d 554 (1990) (Greene, J., concurring).

Clients in this situation are between a rock and a hard place: their apartment is dangerous, the landlord refuses to help, but the tenant may be penalized if they leave the apartment.

This is an example of a situation in which you need an attorney. Depending on the facts of your situation, it may be advisable to file a lawsuit to force the landlord to remove the mold. But in other circumstances, it may be best to just leave the premises. As always, the correct approach depends upon the specific circumstances. You need an experienced attorney to advise you on your options.

If you believe your home has been contaminated with mold, I would be happy to meet with you. There is no charge for the first meeting.

Matthew D. Quinn, 919-754-1600, matt@attybryanbrice.com

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