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Apartment mold claim advances on Building Code theory

A Richmond federal judge says a couple who alleges damage from mold infestation can sue their landlord for negligence per se, on a theory the landlord violated Virginia’s Uniform Statewide Building Code.

The Supreme Court of Virginia has not addressed this kind of negligence per se claim based on the state Maintenance Code, said Richmond U.S. District Judge James R. Spencer.

The cases that do apply negligence per se to violations of the Building Code generally, or to its Maintenance Code specifically, “are not between residential landlords and tenants,” or “precede the General Assembly’s 2008 amendments to Virginia landlord-tenant law that established an ordinary care standard for statutory violations,” Spencer wrote in his Jan. 12 opinion in Sanders v. UDR Inc.

No precedent “directly answers the post-amendments question of whether a residential tenant may properly claim negligence per se based on a landlord’s alleged failure to adhere to provisions of” the Maintenance Code, Spencer said.

UDR argued that allowing the negligence per se claim would make landlords “virtual guarantors of the perpetual pristine condition of leased premises under their control.” But Spencer said the parties still are free to argue the elements of negligence per se, and to debate whether UDR violated the Maintenance Code and whether any such violation was excusable.

The court also denied UDR’s motion to dismiss the tenants’ fraud claims alleging misrepresentations in the maintenance staff’s response to the Sanderses’ complaint and the defendant’s attempts at a remedy.
By Deborah Elkins

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