Winning a Small Claims Case When Sued for Mold
(a.k.a. “Organic Growth”): A Guide for Housing Providers in
North Carolina and South Carolina
By: Kevin Raus – North Carolina & South Carolina Licensed Senior Associate Attorney
with Brownlee Whitlow & Praet
Mold—often referred to as “organic growth”—is one of the more frequent sources of disputes between residents and housing providers in North Carolina (NC) and South Carolina (SC). Residents may claim that organic growth has harmed their health, damaged property, or rendered the home unfit for occupancy, and may sue in small claims (NC) or magistrate (SC) court for damages, repairs, or rent reductions. While facing such a claim can feel daunting, a housing provider can often prevail with preventive action, strong lease provisions, and solid documentation. This guide outlines applicable laws, prevention strategies, key lease language, and effective defense tactics.
Understanding Organic Growth Lawsuits in NC & SC
In North Carolina, the Residential Rental Agreements Act, NC Gen. Stat. § 42-42, requires housing providers to “make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.” Although organic growth is not explicitly named in the statute, courts often interpret this duty to include remediation when organic growth materially affects health or safety. At the same time, residents have reciprocal obligations under § 42-43 to keep premises clean and safe, exercise reasonable care, and promptly report needed repairs. A housing provider’s defense is much stronger when there is evidence the resident failed to meet these duties.
South Carolina law is similar but more specific. Under the South Carolina Residential Housing provider and Tenant Act, SC Code § 27-40-440 requires housing providers to comply with housing codes and keep premises habitable. The Healthy Rental Housing Act, SC Code § 27-40-635, goes further by mandating that housing providers remediate organic growth that materially affects health or safety at no cost to the resident, unless the condition was caused by resident negligence. Housing providers must also disclose visible organic growth in accessible areas before move-in. Residents, in turn, are required under § 27-40-510 to take reasonable steps to prevent moisture and organic growth and to report problems promptly.
Preventative Steps: The Key to a Strong Defense
Courts look closely at whether a housing provider acted reasonably and diligently, so prevention and documentation are the best defenses. Regular property inspections, at least annually, should be conducted with written findings that note any leaks, condensation, or ventilation issues, along with the condition of roofs, gutters, and drainage systems. When residents report problems such as leaks, HVAC issues, or roof damage, housing providers should respond promptly and maintain a log of when the issue was reported and when repairs were completed. Maintenance records—including invoices, emails, and before-and-after photographs—should be retained and organized.
Educating residents is also critical. Housing providers should supply pamphlets or handouts on how to prevent moisture and organic growth, emphasizing ventilation, keeping surfaces dry, and reporting leaks quickly. Whenever possible, properties should be updated with organic growth-resistant materials, such as organic growth-inhibiting paints, drywall, and flooring in high-moisture areas, and exhaust fans should be installed in kitchens and bathrooms. Controlling moisture at the property level is equally important, which means maintaining grading and drainage around foundations and ensuring HVAC systems and dehumidifiers are serviced regularly.
Lease Provisions: Building Strong Legal Ground
A well-drafted lease is a housing provider’s first line of defense. Clauses should include disclosures of organic growth, particularly in NC where visible organic growth greater than 10 square feet must be disclosed before signing, and in SC where visible organic growth in accessible areas must be disclosed before move-in. Documentation of such disclosures, signed by residents, is essential. Leases should also spell out resident responsibilities under NC § 42-43 and SC § 27-40-510, including requirements to maintain cleanliness, use ventilation, and report leaks or water intrusion promptly.
Clear notification and response procedures should be built into the lease, specifying how residents must report issues (such as through a maintenance portal or email) and outlining expected response times. Leases should contain limitation-of-liability clauses stating that housing providers are not responsible for damage caused by resident negligence or failure to report issues—language that can be directly tied to SC statutory authority under § 27-40-510. Providers should also preserve the right of entry, with statutory notice, for inspections or repairs related to moisture or organic growth. Finally, many housing providers benefit from using a separate “Organic Growth Prevention Addendum,” which residents must sign to acknowledge receipt of prevention instructions and educational materials.
Defending Against Organic Growth Claims in Court
When preparing for court, evidence is everything. Providers should assemble inspection logs, maintenance and repair records, resident communications (emails, texts, letters), photographs documenting conditions before and after repairs, and the lease agreement with all signed addenda. Common defenses include showing that no notice was given by the resident (and therefore no duty to act arose), that remediation was prompt and reasonable once the housing provider was notified, or that the resident’s negligence either caused or worsened the issue. In SC, it is often useful to argue that the organic growth did not materially affect health or safety. Expert witnesses such as certified organic growth inspectors, remediation contractors, or HVAC professionals can also testify about causation, remediation, and the absence of hazard.
Common Mistakes That Lead to Liability
Housing providers often weaken their cases by ignoring or delaying responses to resident reports, failing to keep adequate documentation, relying on generic leases without organic growth clauses, neglecting to disclose visible organic growth at move-in, or failing to educate residents about their role in prevention. Each of these mistakes can be costly and difficult to defend against in small claims or magistrate court.
Final Tips for Housing Providers
The best strategy is always prevention. Be proactive with inspections, maintenance, and resident education, and document every step along the way. Know the key statutes—NC: § 42-42 and § 42-43; SC: § 27-40-440, § 27-40-635, and § 27-40-510—and tailor your leases and procedures accordingly. With strong preventive measures, clear lease terms, and thorough documentation, housing providers in both states can greatly improve their chances of winning—or avoiding altogether—organic growth claims in small claims or magistrate court.
*The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information in this article is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. Viewers of this material should contact their attorney to obtain advice with respect to any particular legal matter. No viewer of this material should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this article does not create an attorney-client relationship between the reader and Brownlee Whitlow & Praet, PLLC or any contributing law firms. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.