SCV: Mold statute doesn’t foreclose common law claims

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Tenants alleging black mold in their walls and mushrooms growing in their carpet weren’t confined to the rights in Code § 8.01-226.12

Background

Tenants sued their landlord and a real estate management company, alleging that the apartment they rented exposed them to excessive moisture and mold and that they suffered resulting injuries. According to their complaint, multiple HVAC clogs caused water to soak the closet wall and living room floor and carpet. Mushrooms began to grow on the carpet, and crumbled drywall revealed black mold growths behind the openings. The tenants allege that the Defendants were made aware of these circumstances but took insufficient steps to remediate them.

The trial court denied the Defendants’ motion for summary judgment, but concluded that Code § 8.01-226.12 established “a direct cause of action for personal injury and property damage whenever the landlord or the managing agent with maintenance responsibilities failed to remediate visible mold in accordance with codified Professional Standards for Mold Remediation.” In addition, the trial court held that the legislature intended § 8.01-226.12 “to abrogate the application of all common law claims for personal injury involving landlord/tenant relationships.” The trial court therefore dismissed the tenants’ common law claims for negligence and negligence per se, but certified an interlocutory appeal.

8.01-226.12

Statutes are to be read in conjunction with the common law, giving effect to both unless it clearly appears from express language or by necessary implication that the purpose of a statute was to change the common law. This court perceives no legislative intent to abrogate common law tort liability or immunity beyond the narrow confines of what is plainly expressed in  § 8.01-226.12.

The statute creates new obligations and clarifies existing immunities, but doesn’t purport to occupy the field or to abrogate any common law tort actions seeking recovery based on mold exposure. For example, subsection (E) provides liability for a landlord for failing to perform proper remediation of visible mold. At common law, the landlord had no such responsibility. In addition, subsection (F) provides: “The landlord or managing agent with maintenance responsibilities shall comply with any other applicable provisions of law” – which would include common law obligations. Thus, § 8.01-226.12 doesn’t implicitly repeal or modify any common law causes of action that are beyond the plain language of this statute.

Accordingly, the trial court’s decision to dismiss the tenants’ negligence claims is reversed and remanded for further proceedings consistent with this opinion.

Cherry v. Lawson Realty Corp., Record No. 170718, May 3, 2018. SCV (McCullough), from Newport News Cir. Ct. (Fisher). VLW No. 018-6-033, 9 pp.