Should I sue and would I win?

by admin on April 1, 2011

I moved into a rental house in august of 2009. the rental agreement was 400/mo. + utilities. pets allowed.1yr lease. when we discovered mold, in the bathroom and in our sons bedroom closet, 11-12-09 we called our landlord. His reply was that there was NO mold in the house, then corrected himself, saying that there never WAS any mold in the house before. He said that he would be there by monday morning 11-16-09. we called him that monday at noon to see if he was coming over that day. He said he would be there between 1+2. He came at 2 that day. He said that it was not mold but he would take a test to be sure. That day we went to our local hardware store and purchased our own mold test kit. We tested for visual and air spore samples. by 11-18-09, mold kit positive for visual spore sample, by the next day 11-19-09 mold kit showed positive for air spore sample. by saturday 11-21-09, the mold tests peatree dish was completely covered by mold. 11-19-09 we called our landlord and asked for his results of his test.(He is completely unaware that we tested as well.) he said he would have them by tomorrow and would call to let us know the results. He continued to inform us that the bathroom may have been mold because we do not open the window when taking a shower.( By the way it is november in Illinois) but the kitchen and closet he does not think is mold but mildue rather because "it didnt show up until we turned on the heat." called him 11-29-09, informed him its now showing in the pantry our bedroom closet and under our bed. also informed him that we would like to either teminate the lease and leave with the deposit returned, or move us into another one of his homes and resume the lease there. He told us that he wanted to think about it and would be at the home monday morning. then informed us his mold test was mildue. I replied informing him that we took a mold test as well and it was positive. he then told us, yes his was too but its due to mildue from turning on the heat. 1130-09 he came to home. had some sort of tester and tested for mold inside the walls and said it was negative, took a pic. of our sons closet and decided to terminate the lease and return our deposit. he informed us rent was due tomorrow for 12/09 and that we could stay at home until we found a new place. called bob 12-1-09 asking for deposit back because we had found another place and were moving out today. repsonse: "i find it hard to believe you found another place already." then informed us that he would have to do a walk thru of the home to make sure there were no damages and would then return the deposit. 12-1-09 bob called to inform me that i had to pay my water bill and proof of payment before he would return the deposit. 12-1-09 recieved payment history paid. went to water company switched locations and was informed my deposit on water will pay for last bill and i would recieve a check for the difference probably mid december. 12-1-09 called bob left msg. informing him i went to water company, switched over service and called electric to do the same. 12pm bob called to inform us he spoke to water comp. and that i didn’t pay my water bill and until i did he wouldnt return deposit. and wanted to know when we would be out of the home. we told him we would be gone by the end of the day.(12-1-09) we would not be spending the night there. he then informed me he could not come inspect the home for damages until the home was empty. he then informed me that i did not give him a 30 day notice so there is suposed to be a penalty fee and we would figue that out later. I informed him i would have someone else speak to him because I did not understand him and continued by hanging up the phone. I had my step father talk to him that day. he called us later in regards to the conversation. My stepfather told me that the landlord said that he wouldnt return the deposit until we cleaned and repainted our bedroom. That day we packed, moved and painted. The next day bob called and said that we must return the spare key that we had, and said that when we painted we got way too much paint on the trim and until we sanded and restained the trim, wouldn’t see a dime of our deposit. We had made a counter arguement saying that there was already paint on the trim from 4 other paint coats that someone else had done, one of which was the same color we repainted it, WHITE. We also told him that we would find the key by next week. When we moved the only vehicle we had was a dodge neon, because of the lack of size there were thing like furnature that was left in the garage until we could find a truck because non of the items would fit in the car. We decide to give bob till the end of the month, because he owns multiple properties we figured he would have our deposit and would have much less protest to returning it. When I called him YESTERDAY! He said that he would not be returning the deposit because it was not mold in the house and there for we broke our lease.

I thank those who have responded! So to sum things up we lived in the home for 1 month and yes I had went to the doctors and givin medicine for respratory problem yes probably due to the mold. The 2nd key was lost in the move but found and returned and landloard informed us he would let his attorney know so we could get our deposit. And by the way I had two friends over at the time landloard gave verbal instructions that he would terminate lease and return deposit. But anyway it is now 3 months later from move out date and still keeps giving us excuses not to return deposit! His excuse about us not giving him 30 days notice was proven he was in the wrong due to the mold and dropped that excuse but moved onto other excuses. We have pics of the mold in all rooms of the house and still have the positive mold kit. I did call illinois state health inspector but informed we had to contact Kewanee inspector but landloard says he did and it was inspected and that its not mold but mildue? idk
11-29-09 landloard had his results and tried to tell us it wasnt mold but when confronted about the test we did he changed his answer and tried to make it our fault for there being mold in the home. The water bill issue was resolved and yes it was paid and I do have receipt. The items in garage we had agreement that he would give us 30 days because the garage was not included in rental aggrement but now hes taking his word back and everything in garage was removed within 30 days And employes at Menards saw the pics and informed me to get out of their ASAP! That was when I gave him the choise to terminate lease and return deposit or move us into another one his rentals but to keep lease as it is.

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    { 3 comments… read them below or add one }

    Slider728 April 1, 2011 at 6:52 pm

    You could sue, but you could very well get your a$$ handed to you in court.

    You broke the lease. To break a lease you have to have a valid reason. As a rule of thumb, the property would have to pose a danger to your health or to have such environmental problems that it would be inhabitable for a person of reasonable standards (no heat, constant loud noises, dangerous neighbors, etc..)

    Right away the problem that I see in your case is that it looks like you bought a mold kit from a hardware store, did a surface test and did an air test. Did you do a control test by placing a dish outside? Did you send the spores in for testing to the lab to determine the strain of mold? Not all mold is dangerous to a person’s health. It can cause issues in some people that wouldn’t affect other people, such as people with respiratory illness or allergies to mold. Do you have any documented medical conditions that would make the place inhabitable for you to live due to common mold spores?

    On the rest of the stuff:

    Do you have proof you paid the water bill? Receipt? Cancelled check?

    Did you take pictures of the place before you left? Personally, when I left a rental property, I took pictures or video (when I had a video camera). For added effect, when you take pictures I’d purchase a newspaper from that day and have it in the photographs to establish a date. Keep the front page of the paper in case you go to court, it helps refute any allegations you took the pictures after (though it isn’t fool proof, it just helps). Another way to help establish a timeframe is similar to what they deem a poor man’s copyright. Put the pictures in an envelope and mail them to yourself. Keep them sealed and the postmark will help establish a timeline.

    You could sue in small claims court and you have a fighting chance, but based on the information you gave so far (which may very well be limited due to YA space constrictions), so does the landlord. The mold kits without lab analysis and especially without a control done outdoors may not help your case a whole lot. Another issue is your timeline you gave is 18 days from the first call to when you attempted to move out on 12/1. Would a judge or a 3rd party call this a reasonable amount of time to allow the issue to be diagnosed and resolved? It the landlord simply went to court, said he took samples, and was awaiting results, 18 days would not really me sufficient time to allow the landlord to rectify the issue. However, if your landlord is just being an a** to try and swindle money out of you, then once he is served papers he might just give up the money and look for easier prey.

    Basically, it would be a tough call in court. Take a close, objective look at both arguements. Who sounds more believable? Find a close friend for family member and "present your case" for both sides without emotion and find out who they feel is more believable. When in doubt, check with a lawyer.

    Joe B April 1, 2011 at 6:52 pm

    Beef and Bean Burritos
    This burrito recipe is easy to make. Garnish with shredded lettuce, sour cream, chopped tomatoes, or your favorite garnish. Scroll down the page for more burrito recipes and related recipes.
    1 pound lean ground beef
    1/2 cup chopped onion
    1 clove garlic, minced
    2 teaspoons chili powder
    1 teaspoon dried leaf oregano, crumbled
    1/2 teaspoon ground cumin
    1/2 teaspoon salt
    1/4 teaspoon ground pepper
    1 can (16 ounces) refried beans
    1 can (10 ounces) enchilada sauce, divided
    6 (8-inch) flour tortillas
    shredded lettuce

    Hope this helps

    sweet.caroline April 1, 2011 at 6:52 pm

    You didn’t ask a question, but I am assuming you want an idea of what to do about this or to have yourself vindicated.

    First, by leaving things in the house, even the garage, you had possession of it. Therefore, you have rent due until everything was out. I don’t know about your requirement to paint as there is reasonable wear and tear and you didn’t live there long. If you did mess up the paint job, it is reasonable to have to paint the room. He would have to show you did the mess up on the trim and even then it would be only for the cost to repaint that if it was you.

    With the mold and his refusal to do anything, you can most likely be out of the lease legally.

    I would suggest that you see about an attorney as there are landlord tenant laws and there can be triple damages and punitive damages. So it is worthwhile to get an attorney for a sitaution like this. There could be a problem with the spare key as all keys should be returned. If you had a key you could have made a copy and turned in two copies if you couldn’t find one, but after turning in the key, that is hard to do. An attorney would speak to you about that, but at most it would require changing of locks or rekeying the locks which is cheaper or just getting a copy of a key made – about 75 cents or so.

    Don’t cloud up all the stuff with too many details. Don’t need to know you had a Dodge Neon, but only that you did leave things in garage until you could find a larger vehicle to move things, but that doesn’t negate the fact that you had control of the house. If you kept samples of the mold, you have them but keep them in a good location. You would have been better off to have taken it to Extension services and have them check for mold so you had someone else to testify for you. If you had a friend or neighbor who saw it, use that. If you took photos, use that. Take to lawyer when you go.

    Call attorney and see if they will give you a free consultation to see if you have a case. A case like this should be on a contingency basis and there are attorney fees awarded if you win. Hopefully you can get attorney to take on contingency — no pay if you don’t win, but pay if you do win.

    The landlord constructively broke your lease when he didn’t do anything about the mold. You moved for the health of your son and your own health.

    People who have multiple properties try to take advantage at times. I’m a landlord too and have had a few though down to one. Many times landlords get a bad time with tenants who don’t pay or don’t keep things nice. But many times landlords are unfair and try to keep deposits. You have to pursue your rights.
    hould get back what you put into this in the way of paint and get out of the lease and get your deposit back (possibly less the amount of prorated rent time). 30 days notice isn’t always necessary for health reasons and he didn’t take action to get anything taken care of.
    Good luck to you. I think you may be successful and you should ask for reimbursement of the paint but you should expect to pay rent prorated until you moved your things from the garage. And to pay for a key to be made. You have to calculate your damages and the punitive damages are 3 times the damages. You had cost of the mold test kit. Let attorney help you figure it out. One thing is that your damages may not be much but having to pay 3 times the deposit and the attorney fees, it helps other tenants as the landlord may learn from this.

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