Can we break lease due to mold and still get our deposit back?

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Can we break lease due to mold and still get our deposit back?

I mentioned mold to our landlord. He said I wasn’t cleaning good enough (it’s on the bathroom ceiling/kitchen baseboards). We keep the place clean; he denies mold issue. My husband found mold growing on an autographed baseball cap that is never worn and it smells moldy. Can we break our 12 month lease (we’re 4 months in) and get our deposit back? I have asthma/allergies and it’s a health hazard. Through no fault of our own, we are going to have to move.

Asked on September 21, 2011 under Real Estate Law, Ohio

Answers:

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

Answered 10 years ago | Contributor

You may be able to terminate your lease based on the presence of mold in your rental premises. If the condition is severe enough you may be able to claim "constructive eviction". If there is a mold is causing you health issues to the point that you must move out, you can terminate your lease (an obtain a refund of your security deposit) and have a legal claim for any costs you incur as a result (such a hotel; extra travel time; storing belongings; etc.). Additionally, there is the potential for you to recover your attorney's fees, if any.  Any documentation that you may have will add to the strength of your claim (e.g. photos, health department inspection, etc) and making a case for constructive eviction requires a high standard of proof. 

You can at the very least claim a breach of the "warranty of habitability" which is a guarantee that is implied in every residential lease. It provides that a tenant must be given a sanitary and safe premises in which to live. You have several options regarding such a breach. You can terminate your lease (and get the return of security deposit), as well as withhold rent until the repair is made, or make the repair yourself and the deduct the cost from your rent. The presence of mold would qualify as such a breach. Again photos, etc. are important.

At this point, you should consult directly with an attorney who specializes in landlord-tenant matters. At the very least you need to speak with a tenants right advocacy group. If you attempt any of the above remedies you must be certain of your legal rights under applicable state law; there can be costly consequences for failing to do so.  


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