Living With Fungi Is No Fun

In September 2025 Cindy Morgan moved into an apartment in a 55-and-older community in Temple, Texas, and immediately began to experience “severe headaches, cold sweats, shortness of breath, and facial swelling.” Unable to function, Morgan made four trips to the doctor before she discovered black mold when she pulled back her bedroom carpet. Exposure to black mold can cause allergy-like symptoms and more severe reactions in individuals with pre-existing conditions. Morgan subsequently used home mold test kits in her bedroom, dining room, and kitchen, all of which tested positive

Next door, Tina McGehee discovered mold inside her closet housing her hot water heater and on the outside of her apartment door. McGehee reported the issue to management but felt that the response was inadequate. Down the hall, Melinda Bass, who relies on continuous oxygen for twenty-four hours a day, said she had visible mold growing on the walls outside of her unit. Additionally, Bass said that she began experiencing issues since moving in April, including heating problems, a broken stove, flooding, and pest infestations.

With regard to Morgan, McGehee, and Bass’s apartments’ exposure to black mold, we can consider the question: whether the apartment’s exposure to black mold violates an implied warranty of habitability?

With respect to this question of whether the apartment’s exposure to black mold breaches an implied warranty of habitability, we should consider the case Hilder v. St. Peter. In Hilder, a tenant alerted the landlord of problems in the apartment, but the landlord did not fix them. Instead, the tenant fixed the problems, remaining in the apartment and paying rent. The court held that “in the rental of any residential dwelling unit an implied warranty exists in the lease, whether oral or written, that the landlord will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean and fit for human habitation.” The court’s reasoning moved towards a modern contractual view of leases where the “landlord promises to deliver and maintain the demised premises in habitable condition and the tenant promises to pay rent for such habitable premises.” Based on this view, the court reasoned that standard contract remedies apply but rejected any requirement of abandonment.

The doctrine of implied warranty of habitability can help tenants address the presence of black mold inside and outside the housing units in their 55-and-older community. An implied warranty of habitability imposes a duty on landlords to provide residential tenants with a clean, safe, and habitable living space. First, the tenants must show that they are residential tenants. Because Morgan, McGehee, and Bass all live in apartments within a 55-and-older community, this element is likely satisfied. Second, it must be shown that the apartment is unclean, unsafe, or uninhabitable.

Persistent moisture, humidity, mold nutrients, and poor ventilation are conditions typically associated with unclean or unsafe living environments. Additionally, black mold can have adverse health effects when inhaled or touched and can cause more severe reactions in individuals with preexisting respiratory conditions. One affected tenant, Bass, has preexisting respiratory conditions, and the primary population of this community, individuals aged 55 and older, are more likely to have such conditions. Because Morgan, McGehee, and Bass all experienced effects of black mold inhalation, the second element is likely satisfied. Therefore, I think that the tenants could bring a claim of breach of implied warranty of habitability against the landlord because of the existence of black mold in and around their apartments.

The doctrine of implied warranty of habitability is designed to protect tenants in situations like this, and I think it leads to the right result in this case. The landlord and the tenants are in a contractual relationship to supply a habitable space in exchange for rent payments. It would be unfair to allow either party to breach without having to be responsible for damages. Traditionally, under the rule of caveat lessee, tenants would take the property “as is” and assume the risk of the current condition of the property. However, with more urbanization and reduced tenant expertise, modern courts have shifted away from this approach, recognizing that landlords are in a better position to maintain property conditions and ensure habitability. This shift is especially important in a 55-and-older community, where tenants may be more vulnerable to health risks and less able to address hazardous conditions like mold themselves. Therefore, considering the court’s modern rule imposing more duties on landlords and the impact on a 55-and-older community, I think that the landlord should bear the burden of the cleanup.

John Savage is a law student at the American University Washington College of Law.

Image: Ramy algayar, Black mold (rhizopus sp).