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Sam, Attorney at Law
Category: Landlord-Tenant
Satisfied Customers: 27011
Experience:  More than 20 years of experience practicing law.
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My son apartment had water damage which caused mold to his

Customer Question

My son apartment had water damage which caused mold to his personal clothing, shoes, bed linen,etc, also there is mold growing on the carpet, baseboard trim of walls, the bedroom and bathroom door frames warped and doors won't close, the entire apartment smells moldy and when the air ducts come on there is an extra heavy moldy odor. The beginning of July when I paid July rent I reported that my sons clothes in the walk in closet were damp and in general the apartment felt sticky and humid even with the central air on. I also reported my son was traveling until approx end of August so would they please follow up on this issue since we wouldn't be there to check.
On the evening of July 22 I went to the apartment and found the hallway carpet next to utility closet was soaking wet. The wet carpet extended into the dining area, living room, bedroom and walk in closet. I called and reported to emergency maintenance and they responded promptly but said there were no leaks and the problem was corrected. He brought and left a dehumidifier to the apartment which remained there one week. I stayed at the apartment for the week to follow up on the situation. I emptied the dehumidifier 4 times a day when the alarm sounded allowing me to know it was full. The evening of the 22 the carpet cleaner also came to spray mold killer, deordorize and water vacuum the area. Note on day 7 capet remained with dampness and odor increased. During the week (2 times)the on duty carpet guy stopped by and sprayed for mold and deordorized. He didn't clean carpet because he said he would do after the wall repairs were done. The maintainable man returned the 6th day and took the dehumidifier and said he would report to the apartment manager as the others said they did. I also reported this to the office and manager. She assessed the site on July 29. The apartment remains not repaired. She said I must pay August rent even though apartment is heavily contaiminated with mold. If I didn't she would file a complaint to their corporate lawyer. Also at signing of lease they provided a face sheet of the lease and signature sheet. I have requested a complete copy at least 4 times and they agreed to send via fax and still have not since this incident.
I live in New Jersey and my sons apartment is in Newark, DE.
What should I do?
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  Sam replied 1 year ago.


This is Samuel. I am sorry your son is experiencing this matter. I am going to provide you information and the DE law on a tenant's right to withhold rent until repairs are made.

Please be patient while I provide that information. Thank you

Expert:  Sam replied 1 year ago.

Here is the DE law

5308 Essential services; landlord obligation and tenant remedies.

(a) If the landlord substantially fails to provide hot water, heat, water or electricity to a tenant, or fails to remedy any condition which materially deprives a tenant of a substantial part of the benefit of the tenant's bargain in violation of the rental agreement; or in violation of a provision of this Code; or in violation of an applicable housing code and such failure continues for 48 hours or more, after the tenant gives the landlord actual or written notice of the failure, the tenant may:

(1) Upon written notice of the continuation of the problem to the landlord, immediately terminate the rental agreement; or

(2) Upon written notice to the landlord, keep 2/3 per diem rent accruing during any period when hot water, heat, water, electricity or equivalent substitute housing is not supplied. The landlord may avoid this liability by a showing of impossibility of performance.

(b) If the tenant has given the notice required under subsection (a) of this section and remains in the rental unit and the landlord still fails to provide water, hot water, heat and electricity to the rental unit as specified in the applicable city or county housing code in violation of the rental agreement, the tenant may:

(1) Upon written notice to the landlord, immediately terminate the rental agreement; or

(2) Upon notice to the landlord, procure equivalent substitute housing for as long as heat, water, hot water or electricity is not supplied, during which time the rent shall abate, and the landlord shall be liable for any additional expense incurred by the tenant, up to 1/2 of the amount of abated rent. This additional expense shall not be chargeable to the landlord if landlord is able to show impossibility of performance; or

(3) Upon written notice to the landlord, tenant may withhold 2/3 per diem rent accruing during any period when hot water, heat, water or equivalent substitute housing is not supplied.

(c) Rent withholding does not act as a bar to the subsequent recovery of damages by a tenant if those damages exceed the amount withheld.

(d) Where a landlord files an action for summary possession, claiming that a tenant has wrongfully withheld rent or deducted money from rent under this section and the court so finds, the landlord shall be entitled to receive from the tenant either possession of the premises or an amount of money equal to the amount wrongfully withheld ("damages") or, if the court finds the tenant acted in bad faith, an amount of money equal to double the amount wrongfully withheld ("double damages"). In the event the court awards damages or double damages and court costs excluding attorneys' fees, then the court shall issue an order requiring such damages or double damages to be paid by the tenant to the landlord within 10 days from the date of the court's judgment. If such damages are not paid in accordance with the court's order, the judgment for damages or double damages, together with court costs, shall become a judgment for the amount withheld, plus summary possession, without further notice to the tenant.

Expert:  Sam replied 1 year ago.

And so I suggest that because your son is the Tenant on the lease, he would need to provide the landlord/management company in writing the situation and request it be repaired in accordance with the law. That should be mailed certified with a return receipt requested. You can do it for him, if he grants you a Limited Power of Attorney to act on his behalf.

Expert:  Sam replied 1 year ago.

And this section of the code is also applicable' but again written notice of the problem must be given by the tenant.

5307 Tenant's remedies relating to the rental unit; repair and deduction from rent.

(a) If the landlord of a rental unit fails to repair, maintain or keep in a sanitary condition the leased premises or perform in any other manner required by statute, code or ordinance, or as agreed to in the a rental agreement; and, if after being notified in writing by the tenant to do so, the landlord:

(1) Fails to remedy such failure within 30 days from the receipt of the notice; or

(2) Fails to initiate reasonable corrective measures where appropriate, including, but not limited to, the obtaining of an estimate of the prospective costs of the correction, within 10 days from the receipt of the notice;

Then the tenant may immediately do or have done the necessary work in a professional manner. After the work is done, the tenant may deduct from the rent a reasonable sum, not exceeding $200, or 1/2 of 1 month's rent, whichever is less, for the expenditures by submitting to the landlord copies of those receipts covering at least the sum deducted.

(b) In no event may a tenant repair or cause anything to be repaired at the landlord's expense when the condition complained of was caused by the want of due care by the tenant, a member of the tenant's family or another person on the premises with the tenant's consent.

(c) A tenant who is otherwise delinquent in the payment of rent may not take advantage of the remedies provided in this section.

(d) The tenant is liable for any damage to persons or property where such damage was caused by the tenant or by someone authorized by the tenant in making said repairs.

Expert:  Sam replied 1 year ago.

Though you need to be careful because they can argue they are working on the matter and are taking the reasonable corrective measures as required in (2) above.

Expert:  Sam replied 1 year ago.

I suggest if you really want to have an impact, you consult with a local attorney to write the letter to the Landlord/management company on letter head on your son's behalf.

Customer: replied 1 year ago.
Sam, I have a scheduled appointment in 30 minutes so I must go but this will get me started. Shouldn't they provide me a copy of the lease
Expert:  Sam replied 1 year ago.

No. They do not have to. But you can request it in writing and state you will pay a reasonable fee for the photocopy cost and any mailing expense.

Customer: replied 1 year ago.
Thanks Sam. You answered a lot of my questions and I have a better understanding.
Expert:  Sam replied 1 year ago.

You're welcome. If I've missed anything that you needed or you have other questions, please let me know here. Otherwise, a Positive rating ensures I get credit for my time