Construction Law Insights

Finney v. Clark Realty Capital, LLC, 2022 U.S. Dist. LEXIS 18645, 2022 WL 303245 (E.D. Va. Jan. 31, 2022)

James and Natalie Finney (the “Finneys”), as tenants, entered into a written lease with Fort Belvoir Residential Communities, LLC (“FBRC”), as landlord under a military housing privatization contract, for a residence at Fort Belvoir, Virginia (the “residence”). FBRC had a professional services agreement with Michaels Management Services, Inc. (“MMS”) to provide property management services for FBRC. After moving into the residence, the Finneys filed a series of maintenance requests. On July 5, 2018, the Finneys filed a service request for mold in the master bathroom. A maintenance worker removed mold covered bathtub caulk, but did not replace the caulk. The Finneys continued to file service requests related to potential mold. In May and June of 2019, three different third-party contractors conducted mold inspections of the residence. After the second inspection, a MMS maintenance worker cut a hole in the master bathroom wall. The Finneys thereafter suffered respiratory distress and were eventually relocated. After the Finneys left the residence, extensive mold testing and remediation was performed on the residence. The Finneys sued.

The Court denied each parties’ motion for summary judgment. Proximate cause is ordinarily a question of fact for the jury and the Finneys’ evidence includes the persistent moldy smell, pictures of the removed wall section, aerial testing performed pre-remediation, and the temporal proximity of the onset Natalie Finney’s emergency room visit and the removal of the bathroom wall. As to claims of negligent repairs, a landlord does not have a common law duty to make repairs after delivering possession to the tenant, but, where a landlord enters the leased premises to make repairs, the repairs must be performed with reasonable care. There was a genuine dispute of material fact regarding the standard of care required to support the Finneys’ claims of negligent repairs. There was a genuine dispute of material facts regarding the Finneys’ claims of gross negligence, which is a heedless and palpable violation of legal duty respecting the rights of others that amounts to the absence of slight diligence or the want of event scant care and can be found from the cumulative effect of several acts of negligence that, when viewed in total, lead to an inference of the total disregard for another’s safety.

The Finneys alleged the defendants ignored repeated requests for mold remediation, had knowledge of mold in the residence, mold was visible for a year before remediation attempts were made, and remediation attempts were undertaken in a dangerous manner. As to negligence per se, the Court held that Virginia Code § 55-225.3 can form the basis of a claim for negligence per se. As to breach of contract, the residential lease incorporated the Virginia Residential Landlord and Tenant Act (“VRLTA”) and there was evidence to support a breach by FBRC. As to the Virginia Consumer Protection Act (“VCPA”) claims, the Court held that the defendants were engaged in a consumer transaction and the Finneys were consumers of mold remediation services, so a factfinder could infer that material information was concealed or withheld regarding these mold remediation services. As to the constructive fraud claims, the Court held that a reasonable factfinder could infer a fraudulent act by concealment or omission, therefore constituting a fraudulent misrepresentation. As to the VRLTA violation claims, there was a genuine dispute of material fact because the defendants argued the move-in and inventory form met the requirement for written notice of the presence or absence of mold and experts disputed whether the mold condition materially affected the health or safety of the Finneys as required by the VRLTA.

PLDR Law Scott Kowalski 1 PLDR Law Mark Burgin 1

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