The Home You’re Buying or Selling Developed Toxic Mold. Now What?

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By Gary M. Landau, Esq.

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The Home You’re Buying or Selling Developed Toxic Mold. Now What? | Coral Springs, FL | Call (954) 979-6566

Your South Florida home is on the market and the contract is signed. Or perhaps you’ve found your dream house and can’t wait to close. Then the mold is discovered to have invaded the home.

Probably nothing creates terror in a home on the real estate market as the sight of mold.

 While this living fungus can indeed contaminate a home and make its residents feel sick, discovering mold does not have to kill your deal—or your dream home. On the flip side, buyers can protect themselves from being stuck with a house that is severely infested with mold by taking one easy step.

What Mold Is—and Isn’t

Mold spores come in a variety of species, with some more problematic than others. The Centers for Disease Control and Prevention says spores can enter your home in many ways, from air conditioning systems to windows and doorways and even to residents and pets bringing them in on fur, shoes, or clothing.

When the spores drop somewhere where moisture is present, they begin to grow. That’s why one of the biggest questions a homeowner needs to ask when mold is discovered is whether there is a leak in a pipe or roof that is creating moisture where it should not be that also needs to be fixed.

Many materials in a home are conducive to mold growth, including wood, drywall, ceiling tiles, insulation materials, wallpaper, carpets, and fabric. That’s why once mold enters a home and finds a point of excess moisture, it can spread quickly.

Many people fear mold because of its potential effects on health. The renowned Institute of Medicine reported in 2004 that indoor exposure to mold can lead to health problems, including heightened asthma symptoms in people with the disease and coughing and wheezing in otherwise healthy individuals. Those who have compromised immune systems can also face increased health risks when exposed to mold.

Some websites and magazines have used the term “toxic mold” to describe one species of greenish-black mold, Stachybotrys chartarum, which they claim is especially dangerous, but the CDC says all molds should be treated similarly, and that no mold is actually toxic to touch.

Why You Should Sign a Mold Addendum

Many buyers wrongly believe the discovery of mold during the inspection period forces the seller to clean it up or allows the buyer to cancel the contract. This is not true for the standard contracts used in Florida.

However, there is a Mold Inspection Addendum (known as form CRSP-15) that can easily be signed by both parties when they are negotiating their deal. The addendum says that the buyer has a certain inspection window to test (at buyers’ expense) for mold. The addendum also says that if significant mold is found—typically defined by a dollar amount inserted by the parties for the cost of cleanup, or generally $500 if left blank—during this time period, and the buyer notifies the seller in a timely manner, the buyer can cancel the sale at no penalty to them, with their deposit fully returned.

I highly recommend that buyers use this addendum and follow the inspection and notification timetables precisely.

How Mold Is Eliminated

If the home you are selling or buying in South Florida is determined to have mold, the first thing you should do is check for leaks in the roof or plumbing that could be leading to excess moisture and get those fixed.

Small amounts of mold can be removed from hard surfaces yourself, the CDC says. Use a bleach solution of no more than one cup of bleach in one gallon of water. Be sure to open windows for ventilation and to wear protective gloves and goggles when handling the bleach. Porous surfaces like fabrics that have small amounts of mold will have to be bagged and thrown away.

Large areas of mold, or even smaller areas that are hard to get to, must be cleaned by a professional mold removal and remediation company. If the area is large enough, these companies are required to follow the law and contain the area of infestation before removing the spores. Depending on how much of the home’s materials are contaminated by mold, this can be an expensive endeavor. Whether this is covered by your homeowner’s insurance depends on the policy and also whether the mold was caused by a flood, which is typically excluded from a traditional home policy, according to the website Esurance.

How Mold Affects Your South Florida Real Estate Closing

It is understandable that buyers may panic if they discover mold in a home they are planning to purchase. But the presence of a small amount of mold does not have the kill the deal. If proper cleaning steps are taken, the real estate closing can move forward, although it might be delayed.

To test for mold, you can hire a company that specializes in spores. Look for a company with a good reputation on a website like HomeAdvisor.com or ask friends who have had experience with mold in their home.

If you have signed the Mold Inspection Addendum and significant mold is found, the buyer can terminate the contract as described above. If the home is being sold “as is” and mold is discovered during the inspection phase, the contract typically also lets the buyer back out of the deal (in these contracts, the buyer can usually terminate for any reason during the inspection period).

If your Realtor does not include a Mold Inspection Addendum in the papers you are signing to purchase a home, as he or her to add it. Without exception, every South Florida real estate transaction should include this paperwork.

Real Estate Attorney Coral Springs

Have the Law Office of Gary M. Landau by your side. The Law Office of Gary Landau is located in Coral Springs, Florida, and is rated 10 out of 10 by the legal website AVVO. For more information or free phone consultation, call 954-979-6566 or email us. Attorney Gary Landau personally returns all calls to him.

Law Office of Gary M. Landau P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
954-979-6566

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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