What area tenant’s rights if mold is found on the property?

I have a 2 year old daughter and a 7 month old daughter. My wife has severe sinus infections and I have severe allergies to mold. I want to know if I will be sued for breaking my lease to move out of a home I have tested for and found mold in.

Asked on November 30, 2011 under Real Estate Law, Indiana


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

All residential leases contain what is known as an "implied warranty of habitability"; this is a kind of guarantee. Basically, it means that as a tenant, you are legally required to be given a safe and sanitary place in which to live. If you are, then your landlord has breached the lease.

Mold can be a serious health issue, especially if some of the tenants already have pre-existing condition that may be worsened because of it. What you first need to do is to call the department of health and see if they will send an inspector out to view it. Then, you can do 1 of 3 things:  

  1. repair the problem and deduct the cost from your rent;
  2. withhold your rent until the landlord repairs the problem;
  3. or, in certain circumstances, break your lease.

So if you want to break your lease under the circumstances you mightbe able to. However, you can't simply move out. That would leave you in breach without establishing your right to do so; this could open you up to monetary penalties. What you'll need to do is to go down to housing court or landlord-tenant court (it's called different things in different places) and ask that an action be started based upon the breach of the warranty of habitability. The court may have you pay your rent into an escrow fund. The court will then allow the landlord to take care of the problem or try to at least fix it; you may be relocated for the time it takes them to do so. If they cannot remedy the situation, then you can ask that the court that the lease be terminated.

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