Contributed by:  Michael P. Krein, Ph.D. and Edgar Smith, Esq. 

Mold and Fungal Contamination is a blooming problem for all of us involved with buying and selling homes.  Jury verdicts in excess of six figures have caught the industry’s attention.

This problem isn’t about a buyer complaining about a leaky roof or about a backed up septic system – this is about people becoming ill, in some cases seriously ill, and even dying.  

WHAT ARE THESE MOLDS?

They are often referred to by the blanket term “Mold”, but they are actually a combination of several different types of organisms. They are types of microbial contaminants, primarily fungal in nature.

To put it in its simplest terms – it’s similar to the mold you have seen growing on a piece of old bread. With one minor exception – some of these molds have been found to be toxic to humans and in high enough concentrations can become fatal.

Molds reproduce by forming and disseminating spores – sort of like little seeds that float around in the air until they find a suitable environment in which to grow. Their ideal environment is a warm, moist, and dark location. (The interior walls of houses can be ideal if moisture is present)

It is these airborne “spores” that create the problem.  These spores are typically present in the air that you breathe every single day, whether indoors or outside.  Normally – your body simply deals with them as it does any other foreign organism, with your natural immune system eliminating them.

The trouble seems to start when two situations occur – but only one or the other actually need be present for a problem to arise.

The first is a susceptibility to these “molds” that can be caused by a weakened or undeveloped immune system. The second is of course an inordinately high concentration of mold spores within the structure.

Newborn babies and young infants do not always have fully developed immune systems, hence – if a higher concentration develops in the house, their systems may not be able to overcome and/or eliminate the contaminants.

Seniors and those with respiratory ailments also tend to have weakened defenses and therefore have the same problem.

It is primarily these two groups that have the highest rate of illness that can be attributed to these contaminants.

It has also been suggested that because these two groups also tend to spend a great deal more time in their respective homes – that they tend to have a much higher level of exposure.

This is not to say that these are the only two groups at risk. Anyone at any age can be affected, it is just that most of the cases of serious illness that have so far been attributed to these types of contaminants have occurred in these two groups.

The illnesses that these “molds” can cause can be quite varied. They can also be immune to antibiotics and other types of drug therapy. In some cases – the only means for saving the patients life have been surgical, including removing sections of lung, sinuses, and in severe cases even part of the face and nose. – This is very, very bad stuff.

The primary threats to human health appear to be caused by three specific types, Stachybotrys Chartarum, Penicillium, and Asperigillus, not to say that there are not others. The whole issue is relatively new and there is not yet a lot of research on it. So I’d say we can expect more to come.  Although opinions vary widely as to the toxicity of the different types of molds – the general consensus is that Stachybotrys Chartarum is by far the most dangerous. As with the cases of the infant deaths in Cleveland as noted below, Stachybotrys Chartarum primarily attacks the lungs and respiratory tract and can cause severe hemorrhaging, and eventually death.

Stachybotrys (dark area) as found on drywall

These molds seem to affect humans by more than one method as well. In high enough concentrations, they can literally “grow” inside of the lungs, overwhelming the body’s immune system, and eventually covering the lining of the lungs, preventing the body from receiving enough oxygen and thereby causing death by asphyxiation.

In most cases however it is the Mycotoxins that these particular molds produce and carry within their spores that is the most harmful. These Mycotoxins trigger severe allergic reactions in some individuals; with the symptoms being quite similar to those associated with severe influenza and can become so severe that they result in death.

Furthermore – even if the molds (Particularly Stachybotrys Chartarum) are no longer active or alive – even the “dead” spores themselves still contain Mycotoxins and can still be a serious health threat when inhaled.

It is for this last reason that the old thinking of “eliminate the moisture and the problem is solved” no longer applies. Even dead, dry, inactive molds can still cause serious illness and possibly death in some individuals.

RECENT COURT CASES

In a recent case in Delaware, several tenants began noticing increased respiratory problems. The apartment complex was tested and found to contain higher levels of several contaminants including the “molds”.  After a lengthy trial and several expert witnesses, the tenants were awarded a judgment of $1,0040,000.00. A seven figure verdict for mold contamination!

In Cleveland, Ohio, over a several year span, a particular area was experiencing a rather high level of what at the time was being called “Sudden infant death syndrome” or SIDS. There were numerous investigations and even suggestions of infanticide being raised. It was later discovered the cause of death was the high levels of Stachybotrys Chartarum present in some of these homes. To date there have been over 36 instances in Cleveland with over 16 infant deaths.  In one case – the only visible signs of any mold contamination was one small spot the size of a “golf ball” – but even that was enough.

In Nevada, there have been several illnesses and one death that have been directly attributed to these contaminants. This occurred in a condo complex, where there had been a slow – imperceptible leak in one of the common walls. The molds grew and the concentration level became so high that one elderly person actually died of asphyxiation from them.

The majority of the cases have always seemed to be in older homes, with moisture problems of some sort. But that is no longer true and in effect – the worst is probably yet to come with more and more mold contamination problems actually arising in the newer homes currently being built. So much so – that we have heard of situations where the local “Builder” trade groups have been lobbying to be exempted from any type of liability by state statute.

NEW HOMES - GREATER RISK?

The homes you and I grew up in were most likely built many years ago, before the energy crisis and before the federal insulation requirements. They were usually drafty and very energy inefficient. For that reason, the air in the home generally changed out completely 2-6 times per hour. Even if there was mold in our homes (which there probably was) because of the constant air change – the concentration levels most likely never got high enough to cause a problem.

Newer homes built during the last decade have much more insulation, vapor seals, super tight windows, and additional weather-stripping. The air in them sometimes can take 4- 8 hours to change out completely.

For that reason – with the amount of spores being produced being a constant and sometimes actually increasing, the concentration level in a newer – more energy efficient home can rise at a much faster level and more easily reach a toxic or life–threatening level.

So why are the “builders’ trying to have themselves insulated from any liability - because the mold can literally be built right into the house.

You’ve all seen a new home being built. As it’s being framed out – sometimes it rains. The wood gets wet. Do they wait for a week or two for hot sunny weather to dry out the wood before they sheetrock it and close it up? Not likely.

The wood is wet and now that moisture is trapped inside the interior walls and attic of the home. During the process it was exposed to the open air and probably to various mold spores that occur naturally in the outdoor air. We now have a very nice, warm, moist, and dark environment – absolutely ideal for mold to grow in.

The ideal medium or “food source” for these molds is anything with a high cellulose and low nitrogen content.  For this reason – the favorite medium for these mold spores to attach to is wood and paper products. House are perfect for this because they are constructed with wood studs and then the sheetrock has a nice paper backing on it.

RECOGNIZE THE WARNING SIGNS

You need to recognize the signs.

The first and key indicator is any kind of damp or “musty” smell you notice when entering the home.

If you have a weakened immune system or respiratory problems, we recommend you consider using an EPA- approved respiratory filter (breathing mask) before further inspecting the property. Furthermore – some sources have recommended that all exposed skin surfaces should be immediately washed with soap and hot water if you come into direct contact with mold.

Current opinions we’ve heard all seem to agree that limited exposure causes no threat to persons in normal good health. In fact - most of us are exposed to these “molds” on a daily basis anyway as they are typically present in most outdoor air.

KNOW WHERE TO LOOK

Check under all sinks, toilets, tubs, showers, water softeners, hot water heaters, dishwashers, washing machines, refrigerators with ice makers, etc.  - Anything in the house that has or uses a water line.

You are looking for green, gray and black discolorations. Sometimes they can be quite faint.  Also pay attention to any types of water stains around these items.

Next check the ceilings for signs of roof leaks. The more chronic or older the leak appears to be – the more likely that there may be a mold problem associated with it.

A commonly missed source of moisture intrusion and accompanying mold contamination is the exchanger/blower unit of the central air system. They are usually mounted up in the ceilings and attic where they are seldom seen or checked.

Due the method in which they work – they often cause a condensation effect and produce water that must be piped back out of the home. (A/C drip line) These drain pipes are very easily clogged, and the result is a water backup that overflows the drip pan and leaks into the joists and rafters of the home.

Since these leaks are usually very small – they don’t always result in a visible stain on an interior ceiling where they may be easily seen. However – they do tend to be constant as once the drip line is plugged up there will be excess moisture leaking every time the unit is run. Usually not enough to cause a visible stain – but just enough and often enough to keep the surrounding wood moist enough to provide an excellent area for mold to grow. We strongly advise everyone to have the A/C exchanger checked and serviced on all properties just for this reason.

Base wall;  Visible – typically caused by recurrent flooding.	Interior of wall; Not visible - typically long-term leak.

If you find Evidence of Mold Infestation:

The latest consensus of opinions from the EPA, CDC, and environmental engineers is as follows:

• The molds and mildews found on most hard – non-porous surfaces are not of the dangerous types. (This includes tile, fiberglass, tubs & showers, etc.) Recommended treatment is simply to wash them down with a solution of hot water and bleach.
• In the case of all other treatments/remedies – the source of the moisture intrusion must first be identified and corrected before any other work can be completed.
• Areas of contamination less than 2 square feet are generally not a major concern, and do not require the services of professional for abatement. This sometimes includes the areas under sinks, etc. The affected material can be simply removed and the surrounding areas washed down with bleach and sealed with a commercial product such as “Kilz” paint.
• Areas of 2 to 10 square feet are to be taken on a “case by case” basis depending on the accessibility and can generally be treated as above.
• Areas of 10 – 100 square feet should be inspected and tested by a competent and licensed professional, but usually can be treated as above.
• Areas of contamination of greater than 100 square feet are to be considered a significant health threat and exposure should be limited until thorough evaluation and proper testing can be done by a competent and licensed professional. Any and all abatement and corrective measures are to be supervised by such an individual. (Professional Abatement)

Regardless of your assessment, do not assume that the mold contamination is benign.  If you discover evidence of mold contamination, the basic rule, as always is: when selling disclose it and when buying always obtain a thorough and professional inspection and counsel from the appropriate professionals

Environmental Engineers can perform the tests to determine the nature and extent of the contamination.   recommendation would be to have the buyer use a licensed and certified engineer who specializes in certification.  This is a relatively new area, and standards for certification are not yet uniform.  Look for more information either from the County Building Department, or the “Yellow Pages” under the listings for “Environmental and Ecological Services”.

If the mold is visibly present – the environmental engineer will obtain a sample through scraping the affected area and then analyze it to see if the mold is potentially harmful.  That is the easy method.

But mold isn’t always visibly present.  Any water stains or plumbing problems may signify a mold problem – and that mold problem may be invisible, or inaccessible – behind the drywall.  An environmental engineer can take an air sample outside of the home and another air sample inside of the home. If the level inside is higher than the level outside – the home “may have” (see below) a mold contamination problem, and that will necessarily qualify as a “material fact” that affects the prospective buyer’s decision to purchase.  

**** Note – we have seen several statements and opinions from various experts that the airborne contamination level tests are highly prone to “false negative results”. Therefore we do not recommend that an airborne contaminant test be relied upon nor should be considered as proof that the home is in fact uncontaminated and/or safe.

Here’s the real kicker though. … There is not at this time any type of federally established safe or dangerous levels on these contaminants. So no one really knows what level of contamination is or isn’t safe.

Thus, test results are quantifiable, but the extent of the hazard is not – it is a matter of subjective opinion.  Better to let a certified specialist offer the buyer the opinion and accept the risk of his or her opinion than you.  The costs for these tests can vary widely – but the airborne tests tend to be in the $500 - $800 range with an additional $100 - $200 per scraping sample.

Treatment/Cure/Abatement

These mold spores are very tough and extremely hard to kill. Some of them have been found to survive 3 or more direct applications of straight bleach. Furthermore – as stated previously, even inactive or “dead” spores still contain Mycotoxins and when inhaled – can still pose a health threat.     For that reason the older “common” method of washing down the affected areas with either bleach or vinegar isn’t going to abate the problem.

The only recommended abatement method or “treatment” is the removal and replacement of all affected areas and surfaces. This can get very costly indeed. So much so that in a severe case (where there is a serious flooding or moisture problem) it can actually be cheaper to tear down the entire house and rebuild it, than to try and cure specific areas.

To properly cure and correct the problem, every single effected section of the structure must be removed and replaced. This can typically mean removing and replacing entire walls, floors, roofs, and ceilings. Not just the drywall – but the studs, and exterior sheathing must be replaced as well.  The common under-the-kitchen sink leak that was not addressed by the former owner for some time can result in mold contamination and the need for removal and replacement of the entire kitchen area – at a cost in excess of $15,000.00.

Add this up, and you have the potential homebuyer looking at a very expensive repair bill to place the home in the condition “they thought” it was in when they made the decision to buy it – and would have addressed by reducing their offer to purchase or even their decision to proceed with the purchase - had you disclosed the problem to them.

It bears repeating: Don’t decide how to identify or cure a fungal contamination yourself.  Don’t offer an opinion about the type of contamination, the extent of contamination, or the need for repairs and remediation.  Both the testing for the identification of a particular mold and the steps necessary for remediation are matters that must be left to a qualified engineer. Most of the environmental engineers that perform mold and fungal testing will (for an additional fee) call the scope of repairs and assist in the hiring and supervising of the contractors doing the work. On a further note – most contractors may not be able to perform this type of work - among other things it requires the use of “negative air” machines and other specialized skills and knowledge.

One of the main problems with the whole issue of mold and fungal contamination is the fact that with no federally established guidelines and/or safety limits, and even if you perform all of the work required by the environmental engineer – you still have no way of proving that the structure is in fact now safe. It is still a matter of interpretation.

Using the environmental engineer’s report, scope, repairs, etc., doesn’t insulate you because they typically do not warrant repairs to completely solve the problem, and, because again, there is no definitive limit or guidelines as what is or is not safe.

Like a bad B-run movie sequel, the mold can return.  Therefore, the seller must disclose to prospective buyers all reports, documentation, tests, etc. that you had done on this property.   You want to assure the buyer the problem has been alleviated.  Don’t do it!

Of course, if the litigation-prone buyer still proceeds with the purchase and the mold returns, and in the rare case that produces some illness, rest assured some attorney will look to hold you accountable for providing assurances about the problem being corrected.  But neither you nor the buyer, nor his attorney, know if this problem is related to the old, corrected problem, an entirely new one, or a previously undisclosed and unknown mold problem.

LITIGATION AND LIABILITY

With the fact that several courts have awarded some rather large verdicts in regard to mold and fungal contamination, there is now ample precedent already established for damages. The overall consensus from the attorneys that we have polled regarding this issue is that you have no guaranteed way of relieving yourself of liability. With no established federal limits or benchmarks on what level is or is not harmful, there is no definitive method for determining what is or is not safe – nor any definitive guidelines on what is or is not - required to be disclosed.

To add even more fuel to the fire – the most likely victims are children and the elderly – both groups being able to pull strong emotional and sympathetic feelings from a jury.

Many lawyers are already studying up on this issue and with the intricacies and size of the damage awards involved. The litigation risks are high.

*** Note – after surfing the various legal “chat rooms” one evening – we found over 120 posts specifically dealing with this issue and the accompanying lawsuits that were either already filed or in the planning stages.

For these reasons we expect to see these types of lawsuits becoming more and more common and we had all better be prepared for them.

Disclose - Disclose - Disclose.

The “Garden Variety” “As-Is” addendum may not protect you from liability - Due to the nature and seriousness of mold contamination, the demographics of the most common victims, as well as the current political climate – the general consensus from the attorneys that we have consulted is that an “As-Is” addendum probably will not fully insulate you or the seller from liability.

Known Contamination.

Back to the 3 “D” ‘s.  It has been recommended that on any property that may have mold or fungal contamination issues that you immediately disclose the problem, and any reports or information that you may have on the matter to all parties concerned especially the prospective purchaser. Not only should you get written verification of the disclosure, but have an addendum that holds you and the seller harmless from any issues that may arise concerning this property – specifically those that are mold or fungal related.

In these cases – our thoughts have been to sell the property “As-Is” with no abatement work, as there is no known way of guaranteeing the remediation anyway.  In this situation - the properties will typically have to be very heavily discounted.

Have your attorney draft an addendum for the buyer’s signature that provides:

(a)     Adequate disclosure of the potential existence of the mold problem in general terms (including possible locations for hidden mold growth, such as behind walls, air condition exchange / condenser units, attics and other inaccessible places;

(b)     Advises the buyer to obtain an inspection from a certified and licensed environmental engineer;

(c)     That the buyer shall obtain and approve the inspection as a contingency for purchase (it can be added to the offer as a contingency);

(d)     That the buyer will obtain the engineer from the Yellow Pages, the County Building Department, or other source;

(e)     Has the prospective buyer acknowledge the buyer bears the expense for this inspection;

(f)      That repairs and remediation for mold contamination may require the removal and replacement of walls, floors, etc. and may affect the value of the property;

(g)     That the buyer acknowledges that he or she is not relying on your opinion about the existence, type, or extent of mold contamination in the property, the need for repairs, or the extent of those repairs;

Additional Reference Sources:

California Department of Health Services, April 1998

http://www.dhs.ca.gov/ps/deodc/ehib/EHIB2/topics/toxin_producing.html

http://counsel.net/chat/

CDC Questions and Answers on Stachybotrys Chartarum and other molds

http://www.cdc.gov/nceh/asthma/factsheets/molds/

Beware the mold Stachybotrys

http://www.cnn.com/HEALTH/9711/05/deadly.mold/

EPA Mold Resources

http://www.epa.gov/iedweb00/pubs/moldresources.html

Pulmonary Hemorrhage/Hemosiderosis Among Infants ---

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm4909a3.htm

New York City Department of Health
Bureau of Environmental & Occupational Disease Epidemiology

Guidelines on Assessment and Remediation
of Fungi in Indoor Environments

http://www.ci.nyc.ny.us/html/doh/html/epi/moldrpt1.html

Household Fungus Contributes To "Sick Building Syndrome"

http://www.eurekalert.org/releases/aphyts-hfc020499.html

Stachybotrys

Michael L. Muilenberg
Research Associate/Instructor
Harvard School of Public Health

http://www.aerobiology.org/molds/stachy.htm

Everything you ever wanted to know about Stachybotrys.

http://www.stachybotrys.net

Toxlaw.com – Sick building Chat Room

http://toxlaw.com

Miscellaneous:

http://www.a-corp.com/mold.htm

http://www.inspection1.com/stateregulations/index.html

EPA  Limits and Guidelines For Abatement / Remediation

_________________

⁷ Please note that Tables 1 and 2 contain general guidelines. Their purpose is to provide basic information for remediation managers to first assess the extent of the damage and then to determine whether the remediation should be managed by in-house personnel or outside professionals. The remediation manager can then use the guidelines to help design a remediation plan or to assess a plan submitted by outside professionals.

⁸ Although this document has a residential focus, it is applicable to other building types.

EPA Web site http://www.epa.gov/iaq/molds/index.html