Hamptons Real Estate Law: Mold Remediation

Even the most magnificent homes here on the East End face a challenge that can have an impact on property value, the beauty of your living space and your very health: Mold. The issue may not sound pretty, but there’s hope. Starting this year, Mold Remediation is a licensed field in New York State. Here are five facts that you should know in order to ensure that you are protected by the license law if you’re considering having your home remediated in 2016 or thereafter.

Different Mold Jobs Require Different Mold Licenses
If your house has a mold issue, you first need to hire a Licensed Mold Assessment Contractor to facilitate your remediation project. An Assessment Contractor’s job is to inspect and assess your property in order to discover the existence of mold (i.e., sometimes what you think is mold is not actually mold, so get a professional to confirm prior to spending your money on an expensive project). Next, you will need to hire a licensed home improvement contractor to remediate the underlying source of moisture. Remember, if you don’t fix the source of the moisture, the mold will return as moisture coupled with organic material (i.e., most of your house is composed of organic materials), which is what causes mold to grow. Then, you will need to hire a Licensed Mold Remediation Contractor, who employs Licensed Mold Abatement Workers, to remove, clean, sanitize and disinfect your mold issue. Interestingly, New York State Licensees in Mold Assessment, Remediation and Abatement are expressly precluded from remediating the source of your moisture problem by their license law. Instead, you will need to hire a home improvement contractor, which is a job that is licensed on the county level (also in certain towns/villages) rather than on the state level.

Determining That Your Contractor Is Licensed
New York State’s Department of Labor is charged with regulating and enforcing mold-related licensing requirements. The Department of Labor offers a Licensed Mold Contractors search tool that is accessible on its website at labor.ny.gov/workerprotection/safetyhealth/mold/frequently-asked-questions-general.shtm

You Need to Hire Two Companies to Get the Job Done
The mold license law precludes the same company or individual from performing both mold assessment and mold remediation on the same project. In fact, the law precludes a person from owning an interest in separate entities that are each separately performing either mold assessment or remediation on the same property.

Ask for Your Mold Remediation Plan, Mold Remediation Work Plan, Post-Remediation Assessment and Clearance Report
Before the project starts, both Licensed Mold Assessment Contractors and Licensed Mold Remediation Contractors are required to provide a written plan to you, the vulnerable consumer. Licensed Mold Assessment Contractors are required to draft and provide an itemized Mold Remediation Plan (a.k.a. Work Analysis) for you before any remediation work commences. This plan must include the following: (a) the rooms or areas where the work will be performed; (b) the estimated quantities of materials to be cleaned or removed; (c) the methods to be used for each type of remediation in each type of area; (d) the personal protection equipment (PPE) to be supplied by licensed remediators for use by licensed abaters; (e) the proposed clearance procedures and criteria for each type of remediation in each type of area; (f) when the project is a building that is currently occupied, how to properly notify such occupants of such projects taking into consideration proper health concerns; the plan must also provide recommendations for notice and posting requirements that are appropriate for the project size, duration and points of entry; (g) an estimate of cost and an estimated time frame for completion; and (h) when possible, the underlying sources of moisture that may be causing the mold and a recommendation as to the type of contractor who would remedy the source of such moisture.

Additionally, and incident thereto, Licensed Mold Remediation Contractors are required to prepare and provide to you a work plan with instructions for the remediation efforts to be performed for the mold remediation project. Such Mold Remediation Work Plan must also be provided to you before any work commences. After the remediation project is over, but before the equipment is removed from the site, another assessment is required by the Licensed Mold Assessment Contractor. This Post-Remediation Assessment is required to determine if both: (a) the work area is free from all visible mold; and (b) all work has been completed in compliance with the remediation plan and remediation work plan and meets clearance criteria specified in the plan. If the Post-Remediation Assessment determines that both (a) and (b) are satisfied, then the Licensed Mold Assessment Contractor is required to provide you with a written passed Clearance Report. However, if either or both (a) and (b) are not satisfied, the Licensed Mold Assessment Contractor is required to provide you with a written final status report, which recommends to you that either a new assessment be conducted, that the remediation plan as originally developed be completed, or the underlying causes of mold be addressed, as appropriate.

How to File a Complaint
If an unlicensed individual performs a mold remediation on your property and you experience property damage or, worse yet, health issues, you may have a legal claim that can be pursued within 3 years of when you were wronged (i.e., certain claims may be able to be brought after 3 years, but others expire at the 3 year marker so consult with an attorney as soon as you believe that you were injured physically or financially). Consumers may also report complaints to the Department of Labor of the State of New York by emailing moldcomplaints@labor.ny.gov or by calling 212-775-3532. Penalties for violation of the mold license law include suspension of licensing, revocation of licensing, refusal to renew licensing, orders directing the cessation of unlicensed activity, and/or fines. Initial fines are up to $2,000 and subsequent fines are up to $10,000.

Bonus Concept: Unlicensed contractors who sue for breach of their construction contracts generally lose on their claims if defense attorneys raise the licensing requirement as a defense. It’s likely that the same result will follow for unlicensed assessors, remediators and abators.

This article was written based on New York Law, and property owners from other jurisdictions should check their local real estate laws. This article is provided for informational purposes only. No advice or guarantees of accuracy are rendered herein.

Andrew M. Lieb, Esq., MPH, is the managing attorney of Lieb at Law P.C. and is a contributing writer for Behind the Hedges. Read his work here.