HB221: Residential Landlord and Tenant Act; duty of landlord and managing agent for visible mold.


HOUSE BILL NO. 221
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee for Courts of Justice
on February 1, 2008)
(Patron Prior to Substitute--Delegate Kilgore)
A BILL to amend the Code of Virginia by adding a section numbered 8.01-226.12, relating to landlord immunity for mold claims if in compliance with the Virginia Residential Landlord and Tenant Act.

Be it enacted by the General Assembly of Virginia:

1.  That the Code of Virginia is amended by adding a section numbered 8.01-226.12 as follows:

§ 8.01-226.12. Duty of landlord and managing agent with respect to visible mold.

A. As used in this section, the following definitions apply:

"Authorized occupant" means a person entitled to occupy a dwelling unit with the consent of the landlord, but who has not signed the rental agreement and therefore does not have the rights and obligations as a tenant under the rental agreement.

"Dwelling unit" means a structure or part of a structure that is used as a home or residence by one or more persons who maintain a household, whether single family or multifamily, including, but not limited to, a manufactured home.

"Guest or invitee" means a person, other than the tenant or person authorized by the landlord to occupy the dwelling unit, who has the permission of the tenant to visit but not to occupy the premises.

"Interior of the dwelling unit" means the inside of the dwelling unit, consisting of interior walls, floor, and ceiling that enclose the dwelling unit as conditioned space from the outside air.

"Landlord" means the owner or lessor of the dwelling unit or the building of which such residential dwelling unit is a part. "Landlord" also includes a managing agent of the premises who fails to disclose the name of such owner, lessor, or sublessor. Such managing agent shall be subject to the provisions of § 16.1-88.03.

"Managing agent" means a person authorized by the landlord to act on behalf of the landlord under an agreement.

"Mold remediation in accordance with professional standards" means mold remediation of that portion of the dwelling unit or premises affected by mold, or any personal property of the tenant affected by mold, performed consistent with guidance documents published by the United States Environmental Protection Agency, the United States Department of Housing and Urban Development, the American Conference of Governmental Industrial Hygienists (the Bioaerosols Manual), Standard Reference Guides of the Institute of Inspection, Cleaning and Restoration for Water Damage Restoration and Professional Mold Remediation, or any protocol for mold remediation prepared by an industrial hygienist consistent with said guidance documents.

"Notice" means notice given in writing by either regular mail or hand delivery, with sender retaining sufficient proof of having given such notice, which may be either a United States postal certificate of mailing or a certificate of service confirming such mailing prepared by the sender. However, a person shall be deemed to have notice of a fact if he has actual knowledge of it, or he received a verbal notice of it. A person "notifies" or "gives" a notice or notification to another by taking steps reasonably calculated to inform another person whether or not the other person actually comes to know of it. If a notice given is not in writing, the person giving the notice has the burden of proof to show that the notice was given to the recipient of the notice.

"Readily accessible" means areas within the interior of the dwelling unit available for observation at the time of the move-in inspection that do not require removal of materials, personal property, equipment, or similar items.

"Tenant" means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others. Tenant shall not include (i) an authorized occupant, (ii) a guest or invitee, or (iii) any person who guarantees or cosigns the payment of the financial obligations of a rental agreement but has no right to occupy a dwelling unit.

"Visible evidence of mold" means the existence of mold in the residential dwelling unit that is visible to the naked eye of the landlord or tenant at the time of the move-in inspection.

Any term not expressly defined herein shall have the same meaning as those defined in § 55-248.4.

B. Neither the landlord nor the managing agent shall be liable for civil damages in any personal injury or wrongful death action brought by a tenant, authorized occupant, or guest or invitee for exposure to mold arising from the condition within the interior of a dwelling unit, or for any property damage claims arising out of the landlord-tenant relationship, if the mold condition is caused by the negligence of the tenant.

C. A managing agent with no maintenance responsibilities shall not be liable for civil damages in any personal injury or wrongful death action brought by the tenant, authorized occupant, or guest or invitee for exposure to mold, or for any property damage claims arising out of the residential landlord-tenant relationship, unless the managing agent fails to disclose the existence of a mold condition of which the managing agent has actual knowledge to the landlord and any prospective or actual tenants.

D. If the written move-in inspection report authorized under Chapter 13 (§ 55-217 et seq.) or 13.2 (§ 55-248.2 et seq.) of Title 55 reflects that there is no visible evidence of mold in areas readily accessible within the interior of the dwelling unit, and the tenant does not object thereto in writing within five days after receiving the report, there shall be a rebuttable presumption that no mold existed at the time of the move-in inspection.

E. If visible evidence of mold occurs within the dwelling unit, the landlord or managing agent with the maintenance responsibilities shall, exercising ordinary care, perform mold remediation in accordance with professional standards.

F. The landlord or managing agent with maintenance responsibilities shall comply with any other applicable provisions of law.

HOUSE BILL NO. 221
Offered January 9, 2008
Prefiled December 28, 2007
A BILL to amend the Code of Virginia by adding a section numbered 8.01-226.12, relating to landlord immunity for mold claims if in compliance with the Virginia Residential Landlord and Tenant Act.
Patron-- Kilgore

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1.  That the Code of Virginia is amended by adding a section numbered 8.01-226.12 as follows:

§ 8.01-226.12. Landlord and managing agent immunity for mold claims if in compliance with the provisions of the Virginia Residential Landlord and Tenant Act (§ 55-248.2 et seq.).

A. As used in this section, unless the context requires a different meaning:

"Authorized occupant" means a person entitled to occupy a dwelling unit with the consent of the landlord, but who has not signed the rental agreement and therefore does not have the rights and obligations as a tenant under the rental agreement.

"Guest or invitee" means a person, other than the tenant or person authorized by the landlord to occupy the premises, who has the permission of the tenant to visit but not to occupy the premises.

"Landlord" means the owner or lessor of the residential dwelling unit or the building of which such residential dwelling unit is a part.

"Managing agent" means a person authorized by the landlord to act on behalf of the landlord under an agreement.

"Residential dwelling unit" means a structure or part of a structure that is used as a home or residence by one or more persons who maintain a household, whether single family or multifamily.

"Tenant" means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others. Tenant shall not include (i) an authorized occupant, (ii) a guest or invitee, or (iii) any person who guarantees or cosigns the payment of the financial obligations of a rental agreement but has no right to occupy a dwelling unit.

"Visible evidence of mold" means the existence of mold in the residential dwelling unit that is visible to the naked eye of the landlord or tenant at the time of the move-in inspection.

B. A landlord shall not be liable for civil damages in any personal injury or wrongful death action brought by a tenant, authorized occupant or guest or invitee for exposure to mold arising from the condition of a residential dwelling unit provided that:

1. The landlord has complied with § 55-248.11:1 by disclosing to the tenant as part of the move-in inspection report that there is no visible evidence of mold in the dwelling unit, and the tenant does not object thereto in writing within five days after receiving the report;

2. The landlord has complied with subdivision A 5 of § 55-248.13 and used reasonable efforts to maintain the residential dwelling unit and the premises in such a condition as to prevent the accumulation of moisture and the growth of mold, and promptly responded to any written notices from a tenant as provided in subdivision A 8 of § 55-248.16; and

3. The tenant has complied with subdivision A 8 of § 55-248.16 and used reasonable efforts to maintain the dwelling unit and any other part of the premises that he occupies in such a condition as to prevent accumulation of moisture and the growth of mold, and promptly notified the landlord in writing of any moisture accumulation that occurred or of any visible evidence of mold discovered by the tenant.

C. A managing agent shall not be liable for civil damages in any personal injury or wrongful death action brought by a tenant, authorized occupant or guest or invitee for exposure to mold arising from the condition of a residential dwelling unit provided that:

1. The managing agent provided written disclosure in the lease agreement or other document that the managing agent was the disclosed agent of the landlord;

2. The landlord or managing agent complied with the provisions of subsection B; and

3. The managing agent did not breach the standard of care by committing an affirmative act of negligence.

D. The provisions of this section may be applicable to dwelling units subject to the provisions of Chapter 13 (§ 55-217 et seq.) of Title 55, if the landlord or managing agent complies with the provisions of this section.

E. A landlord or managing agent claiming immunity under this section may assert such immunity in responsive pleadings and request a hearing, after discovery on issues related to immunity, before the court to determine entitlement to such immunity prior to further proceedings in the case.