CONDOS, WATER DAMAGE AND TOXIC MOLD

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An Article

CONDOS, WATER DAMAGE AND TOXIC MOLD

October 30, 2006

By Bobbins, RN, L.Ac, QME

Copyright Bobbins

http://www.ahrc.com/new/index.php/src/news/sub/article/action/ShowMed

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Los Angeles, California -

1. Boundaries of Community Living

2. Water Damage and Mold

3. Toxic Mold and Related Illness

4. Some Precautions and Tips in Dealing with an HOA

1. BOUNDARIES OF COMMUNITY LIVING

Since 1984 and the birth of the -Stirling Act, laws governing

common interest developments have changed several times over and

they keep changing. In the beginning condominiums were simply

recognized as a structure. Today the many forms of condominiums are

statutorily defined as " boundaries of which are described on a

recorded final map, parcel map, or condominium plan. " [Civil Code

1351 (f)] The statute goes on to state that the area within these

boundaries can be filled with air, earth, water, or any combination

thereof. Unfortunately for some, controlling what enters into or

invades that " space " may be next to impossible especially when there

are shared infrastructures, such as adjoining walls, plumbing, HVAC

systems, and much more. One of the problems that can involve this

space is water intrusion and toxic molds such as Stachybotrys. Known

as the " black mold " , this is only one of a number of toxic types of

mold that have been linked to illness in humans.

The challenges of community living with adjoining walls and ceilings

can turn common areas into common nightmares. With the laws that

once identified a condominium as a structure, now identifying it

simply as " space " , many residents are left in a quandary. Only when

it is too late do condo owners realize just how little control they

actually do have over their own " space " . Since an owner does not own

their " common " area walls, conflicts over this do arise. When a

condo has water damage and or mold resulting from the common areas

the issue of repair can become problematic. This can result in

disputes that spiral out of control and can end up in litigation.

Dealing with water damage and or a mold problem can be difficult

enough in of itself. When you throw into the mix a homeowner

association, with a board of directors, a property manager, a

management company, as well as an association law firm, along with

adjoining walls, you can end up in serious trouble and hardship.

Water damage and mold in condominiums is like the Rubik's cube of

countless nightmare possibilities.

The problems specific to condominiums concerning water damage and

mold can and do become convoluted. Leaks resulting from plumbing

within common walls affecting individual and adjoining units are

just one of the problems for condominium structures. Unlike an

apartment where a landlord would be responsible for repairs, water

damage in condos can become a no mans land of responsibility.

Certainly there are landlords as well that may ignore a tenant's

report of leaks and mold, however the difference in a condominium is

obvious-you own it and are responsible. Though you own the condo you

oftentimes have little to no control over many aspects including

repairs.

Condo owners are dependent upon the whims of an association whose

board of directors may or may not be diligent in their duties and or

even ethical. Boards of directors have a fiduciary duty to maintain

and repair common areas. Unfortunately for many condo owners, board

members may not even know what their fiduciary duties are or worse

yet simply disregard their obligations. Homeowners should also

realize just because they employ a property manager with

certification, this is no guarantee that the manager will be

diligent or attentive to necessary repairs either. This may continue

to be the case with the management company as well.

Further complicating the mold issue is for those that purchase

recent condo conversions only to find that some of these

apartment/condos have serious problems with toxic mold. What may

look like an appealing renovated apartment converted into a condo

for a good deal may end up becoming some ones worst nightmare.

2. WATER AND MOLD DAMAGE

In day-to-day living in a condominium, any water damage resulting

from problems with adjoining units and or from any common area

presents a unique set of problems. When water intrusions occur from

an adjoining unit due to overflowing sinks or tubs, dishwashers,

washing machines, toilets, icemakers, and or watering on decks,

owners are often told by the association that it is a unit to unit

problem. Most associations will not intervene in such matters. In

other words, it is a civil matter to be dealt with between those

owners affected by the problem.

Other problems may consist of unidentifiable sources of water damage

between units; because their complications are vast, these types of

problems usually present an even greater challenge. It is not

unusual for an association to never find the source of a leak and so

it just simply is not dealt with. An association can then refuse to

deal with the water damage stating it was not a result of a problem

from the common area. Battles over who is ultimately responsible for

repairs are commonplace in many HOAs.

When owners find themselves dependent upon intervention by their

association to remedy common area water damage, the homeowners may

be in for a rude awakening. Leaks and or mold may go unattended

while the issue is placed on hold by the board and or management and

possibly not resolved at all. Condo associations are notorious for

delays in dealing with problems of water intrusion and or mold

damage. In the meantime mold can begin to grow in the wall due to an

ongoing leak Mold occurs as a result of moisture and can grow in 48-

72 hours. More and more often dwellings registering with elevated

levels of mold are showing up with elevated levels of toxic types of

mold.

Oftentimes an owner's report of leaks from their common area walls

is met with the association stating that the leak is coming from a

part of the plumbing that is the owner's responsibility. Just

because the plumbing may be inside of the common wall does not

automatically mean that the part of the plumbing affected is

considered common area-thus being the responsibility of the

associations. There are many nuances to this. The only means an

owner has of confirming the cause and location of the leak is to

bring in their own outside licensed plumber to evaluate the

situation. Associations know that most owners are not willing to go

to this trouble and expense. Owners often just accept what they are

told and pay the cost to have employees and or vendors from the

association make repairs.

When the repair involves the common area to an owners unit, who

makes the repair is considered to be within the purview of the

associations. Though the owner may still end up getting billed for

this, they usually do not have a choice over who makes these

repairs. Another pervasive problem unique to common interest

developments is in the use of specific vendors that may not be in

the best interest of the homeowners. Associations often use vendors

that have waivers of liability to any of the work they perform. In

addition a problem can occur in the use of an association employee

and or vendor who does not have the proper training in dealing with

mold. This can result in further contamination of areas. Worse still

is when an association refuses to address common area water and or

mold issues delaying repairs, causing the mold infestation to

increase.

Most unfortunate is when condo associations in a misguided attempt

to protect property values conceal extensive problems of toxic mold.

By attempting to conceal these problems inadvertently causes the

problems to worsen. Most homeowners not even realizing that a

serious problem is taking place within the building need to be

notified and educated in what to look for and report. If mold is

growing inside of the walls due to a moisture problem and is not

dealt with it continues to grow and grow right into adjoining units.

What owners of condominiums do not understand is that once the mold

begins to grow in adjoining walls the air they breathe in their own

unit can become affected without anything ever being visible. Even

if an association and or owner remediates one unit, problems in

adjoining units may cause recontamination.

Most harmful is when a structure becomes riddled with toxic mold

causing it's residents to become ill as a result of this. The

tragedy is for those who become sick and have no idea that their

symptoms stem from a problem resulting from elevated levels of toxic

types of indoor molds. Mold can grow inside of the walls and not be

visible while still creating a serious health problem. Mold spores

are microscopic and can easily move through any openings such as

vents and outlets out into the ambient air within the dwelling. The

lesson being just because you cannot see the mold growing does not

mean you do not have a mold problem.

3. TOXIC MOLD AND RELATED ILLNESS

Sick building syndrome is a term that came about in the eighties as

a result of fundamental changes in how structures were being built

in the seventies. Buildings most prone to water damage and toxic

mold are those built around this time period though all structures

can be prone to problems. Many of the newer buildings have also

become extremely problematic for mold as well. In addition since the

advent of the HVAC system built into our dwellings an increase in

problems of mold proliferation continues. We are continuing to see

an increase in problems with toxic mold in general due to how our

buildings are being constructed today. In spite of the increasing

amount of construction defect lawsuits, the building industry has

been slow to respond with improvements that address mold prevention.

When it comes to building high end expensive structures or the

lesser priced buildings, leaks and toxic mold are non-

discriminatory. Individuals from all walks of life both rich and

poor have reported health problems as a result of exposure to toxic

molds within their environments.

Not everyone becomes ill who is exposed to toxic mold. Sometimes

only one family member in a household may become sick or an entire

family can become ill. Children are often most vulnerable as well as

those with compromised immune systems. Length of time exposed, the

levels and types of molds one is exposed to can affect this. Not all

molds are toxic. Mold spores that contain mycotoxins create the

toxicity to the mold. What is unique to mold exposure when there are

symptoms involved is that it creates a multi-level system of

illness. Most often those exposed do not just develop one symptom

but rather multiple symptoms affecting many different systems in the

body. It is often due to this that makes diagnoses so challenging.

Signs and symptoms of mold exposure can range from allergies-runny

nose, itchy eyes and ears, coughing and sneezing. Asthma can develop

and or respiratory infections. Chronic bronchitis, laryngitis,

pneumonia, and or chronic colds and flu can occur. Another common

grouping of symptoms can be chronic headaches, dizziness and

fatigue. Other symptoms frequently reported are rashes, muscle aches

and pains, hair loss, excessive sleepiness, and urinary tract

infections. Cognitive deficits consisting of short term memory loss,

word finding problems, difficulty concentrating and disorganization

are common. Sleep disturbance can also occur. Gastrointestinal

problems with stomach cramping and diarrhea are often part of the

presenting complaints. These are only a few of the many symptoms

that can affect individuals made ill from exposure to toxic molds.

Once an individual removes themselves from the contaminated

environment most symptoms will subside. However for some individuals

the physical damage they sustain may become permanent. Some may

develop life long problems with lung ailments and or neurological

difficulties. A certain number will go on to develop multiple

chemical sensitivities [MCS] unable to tolerate certain smells such

as some types of perfumes and or cleaning fluids. MCS can involve

extreme sensitivity to any number of chemicals, odors and smells.

Others especially if they experienced a secondary exposure can

remain highly sensitized to even the slightest elevations of certain

types of molds. Like those allergic to beestings this can worsen

over time creating lifetime problems with a constant reactive

reoccurrence of symptoms.

When the connection is made to symptoms experienced as a result of

mold exposure there then becomes the navigational system through the

nightmare of finding the right medical help. Aside from the enormous

costs involved with this, the physicians who have the expertise in

mold exposure are few and far in between. Worse still are for those

then having to battle ruthless homeowner associations, board

members, property managers, association attorneys, management

companies and their vendors with disputes over testing and repairs.

The combination of all of this together can take a huge toll on an

individual already suffering the ill effects from mold exposure. For

those that pursue litigation, this adds additional stressors.

Litigation though sometimes necessary can become overwhelmingly

terrifying and a nightmare in of itself, especially when dealing

with a vindictive homeowner association.

4. SOME PRECAUTIONS AND TIPS IN DEALING WITH AN HOA

Upon realizing that the cause of damage was likely the result of

association related negligence, some boards mishandle the matter to

the extent litigation results. More often than not, such battles can

begin when a board fails to recognize and treat the problem when

they first learn of it. A board's resistance to correct the problem,

let alone acknowledge that a serious problem even exists, often

results in the creation of a board's mode of operandi through

denial, delay and intimidation.

In dealing with damages that result from the common areas it is

important to first thoroughly understand what is meant by the

term " common. " There are many complexities to this in a condominium

structure. Each owner should familiarize themselves with their own

associations governing documents, specifically their CC & Rs regarding

the sections concerning " common " and " common area " . To better

understand the legal terms pertaining to the specific codes this can

be found in the California Administrative Codes and the -

Stirling Act Civil Codes sec.1350-1378. If you are in another state

you will need to check the applicable codes for that individual

state.

If you think you have a mold problem as a result of water damage

from the common area you will need to carefully document this.

Owners often verbally communicate problems and requests for repairs

without placing this in writing. It is essential to back up all

verbal communication of this type in a letter. Since those

responsible are the board of directors, letters should be addressed

directly to the board members. You can initially fax the letter

addressed to the board. However if you do not get a written response

[within 10 days] that acknowledges your letter, you will need to

resend it through sign returned receipt such as certified mail.

Ideally letters reporting damage [especially regarding water and or

mold damage] and or requesting repairs should be sent through signed

returned receipt as proof the letter was sent. It is not unheard of

for associations to claim they never received letters, let alone a

phone call reporting problems. Never use e-mail to communicate.

It is important to ensure that the problems you are experiencing

become part of the record in the minutes of the next board meeting.

After you have sent your letter to the board members, be sure to

make a written request to place your issue on the agenda for the

next upcoming meeting. Take your letter to the board meeting and

address this on the record. According to the -Stirling Act

Civil Code sec.1363.05 (d) open meeting minutes shall be available

to homeowners within 30 days. Each homeowner that presents an issue

in a board meeting needs to review these minutes for accuracy. If

there are inaccuracies you will need to let this be known for the

record in the next meeting. It is important to attend all open board

meetings. If your association attempts to prevent you from

discussing [in an open meeting] common area problems affecting your

unit, then this may be a red flag to a history of more serious

problems.

Be aware that the board may invite you to an executive session to

discuss your situation. Executive sessions are used to avoid issues

from becoming known within the open meetings and or ending up in the

open minutes. Executive session minutes can only be obtained through

court order. In addition, if a board is abusive to you and or makes

non factual statements in executive session, there are usually no

witnesses present on your behalf. Always make it known that you are

willing to cooperate and accept your associations invitation to

meet. Request that this take place in an open meeting.

Be sure to photograph any damages within your unit as well as all

surrounding areas. A video camera includes options for the date

however for still photographs you will need to include the date

within the area photographed when taken. It is always a good idea

for all residents for insurance purposes regarding any type of

property loss or damage to maintain a photographic log of all

belongings of value.

Owners are reminded not to " offset " damages or alleged losses by

withholding an assessment [association dues] payment. Falling behind

and or withholding payment of assessments provides your association

an opportunity to foreclose on your property. Even if an owners unit

becomes uninhabitable due to problems created by the association,

assessments must still be paid. Missing payments for any reason is a

fatal error made by many who have lost their homes over this. An

association can levy fines, penalties, interest, collection costs,

and legal fees to a late or missing payment with the end result of

foreclosure by that association.

Each owner should have a full copy of the association insurance

policy that has been mailed to individual owners. It is the right of

each owner to request and receive this information pursuant to Civil

Code Sec 1365 (E4). Many associations have a history of withholding

this information from owners who request this.

In addition every condo owner should ask for and receive a copy of

their association policy and procedure for water damage and mold.

And if no such policy exists be sure to have the association put

this in writing. Associations with something to hide can become

vicious at the mere mention of toxic mold, which is one reason you

should already have a policy for this on hand prior to a problem

occurring. It is not uncommon for an association to deny or withheld

a policy for water damage and or mold only to later produce this

using it against the owner.

In essence, the integrity of your condominium can depend upon the

integrity of your association-its board of directors-property

manager- association attorneys- management company- maintenance

employees and vendors. In an age where condos with their community

living have become more notorious for the problems that are taking

place, then for their so called free and easy life style, integrity

is not something routinely found today amongst those running

homeowner associations.

With all the problems of adjoining walls, difficult and sometimes

vindictive boards, ruthless association attorneys, along with few

individual homeowner rights, many condo owners are packing it in and

moving on. Until legislation changes to better protect the

homeowner, leaving an HOA may not be such a bad idea.