Full question:
A condominium association in Florida is asking the owners for an amendment that is a disclaimer, waiver, and release of claims regarding mold and mildew. The Association wants the owners to admit that mold and mildew can exist in the wall cavities, windows, and on the interior surfaces of the apartment and yet waive any responsibility by the association. The question is: If the association is malfeasant in its duties to maintain the roof and envelope of the building, how can an owner or the owners insurance company subrogate a claim?
- Category: Contracts
- Subcategory: Releases
- Date:
- State: Florida
Answer:
Mold cases often present difficult issues of proof with regard to causation and damages, due to the lack of standards for mold. Whether a condominium association can be held liable for mold problems despite a waiver will depend partly on the nature of the problem and the disclosures made. If a party makes a full disclosure and another voluntarily relieves them of all liability, the waiver may be upheld. However, if Party A has failed to disclose problems it is aware of or should have been aware of, the waiver based on such disclosure may not be enforceable. Waivers may also limit the types of damage that are waived, so the scope of the waiver will be a factor.
Some of the issues that will be considered, among others, include the cause of the mold, whether proper measures were taken to inspect the property, if a problem was previously discovered, the adequacy of the steps take to cure the problem, the completeness and accuracy of the disclosures made, and the scope of the type of damages covered in the waiver.
For example, if Party A knows of a mold problem and fails to disclose the extent of the problem it is aware of or attempts to cover it up, a waiver may not be upheld. If the party knew of a mold problem, but failed to take proper measures to fix it , or failed to take proper meaures to inspect the property for damage, a waiver may not be upheld. It will be a matter of subjective determination for the courts, based on all the facts and circumstances involved. Also, the insurance policy coverage will be a factor, as some policies exclude coverage for mold. It is recommended to discuss mold coverage with the insurer involved.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
