Thread: Mold Inspector tresspassing and test validity

What about if the person is trespassing.

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Sounds like a question for a lawyer, not a home inspector.
I would recommend finding someone truly qualified to comment on mold, an industrial hygienist, not a home inspector.
From what little I know about typical mold inspections, testing was never needed in the first place. Then there is NO SAFE LEVEL (or unsafe level for that matter) of mold. Use the search function here to learn a little more about mold with particular attention to our resident expert,CaoimhÃ*n P. Connell's posts on the subject.

Originally Posted by Debra Sabet

If a mold inspector committed tresspassing while performing a mold
test (air sampling), is the test valid?

As Jim pointed out this is a legal question. But, on the other hand the act of trespassing would not change the test results. So, I would have to say that the test results would be valid if the proper protocols were followed and performed.

Kind of like..."is a pregnancy test valid if the test kit was stolen".

Originally Posted by Debra Sabet

So in a sense, the inspector under the Ohio tresspassing laws comitted tresspassing since we informed him via text messages and his client NOT to enter the home unitl further notice.

Again this is not a legal opine..... The Agent is the one who opened the door and let the person in to test. Your beef is really with the agent and the relo company. Even if you can verify that the person received and read the "text" messages, what good is it going to do.

So, if I was the owner I would be contacting Mr. CaoimhÃ*n P. Connell. He would be a very good expert to contact and hire.

I would also be contacting my employer and let them put pressure on the Relo company. They might answer to you, but when faced with the folks that are feeding them they will talk to your employer. Your employer also needs to be aware of the tactics they are using.

Originally Posted by Debra Sabet

If a mold inspector committed tresspassing while performing a mold
test (air sampling), is the test valid?

The more correct question would be (and this has been alluded to in previous posts) ... is the mold test itself valid as a means of testing for mold, and is the reason for testing for mold valid?

As Scott said "So, if I was the owner I would be contacting Mr. CaoimhÃ*n P. Connell. He would be a very good expert to contact and hire."

Originally Posted by Debra Sabet

LOL, I better clairfy. A mold test was scheduled because an appraiser thought candle soot was mold. The relocation company then wanted to perform a mold test on the soot, and do a visual from attic to basement, then take air samples throughout the home. There policy is if any type of mold is found, the home will no longer qualify for a buyout from the company using the relocation company (trying to explain without naming names).

The homeowner's (us) felt this was a bit overboard and wondered why not just test the marking on the ceiling, but agreed to the test under the condition they had tests run along side of their mold inspector, (because by this point, the homeowner's were getting a little suspicious of the relocation companies momving target policies.) This was written to the relo in writing very clearly and we would schedule with their inspector and cooordinate with ours to be there together. However, even after email and verbals to their inspector and relo heads, they went around us and called our agent to let the inspector in our home without our knowing (and subsequently, we were unable to run the tests concurrently). They told us if their tests come up positive for mold, and if we run a test the next day, etc. it would mean we remididated so our would be unvalid.

So in a sense, the inspector under the Ohio tresspassing laws comitted tresspassing since we informed him via text messages and his client NOT to enter the home unitl further notice.

See this Franklin Co. Ohio Web page - its a government site:FCBH - Mold in the Indoor Environment

Unfortunately you've already been "tested". Realize you claim only suspicion was soot from candle burning (why wasn't the soot cleaned up then? House wasn't really "show worthy" yet?

Guessing the Ohio home is unoccupied and has been closed up and not air conditioned, cleaned and kept clean, and/or occupied for some time, esp. this summer.

Probably just needed to be aired out, cleaned, and then the A/C ran for a while to reduce humidity. If you left scatter rugs in the dark, cool, humid basement, especially if they were least bit dirty, they'd be the first to start smelling. If the home wasn't kept at reasonable lower realitive humidity, closed up, dirty, or if there is a water infiltration problem, or a leak, sure mold can flourish (not that it has, but it can).

As you will read those "air samples" from indoors with a "control" "air sample" taken outdoors then taken to a "lab" and "encouraged to grow" are scientifically baseless for the most part.

Talk to your Ohio attorney, shame you didn't consult him/her before you agreed to the testing, or had him/her review your relocation package, etc. Doesn't sound like a tresspass if your AGENT gave them access. Your Attorney should be able to advise you further.

Take a look at the Franklin County (Ohio) page I linked to above, check out some of the links they provided at the bottom of the page. Their link to the US EPA site is outdated, and the redirect from EPA is fractured. The correct/updated link is: Mold | Indoor Air Quality | US EPA You'll read there that mold is everywhere.

Good luck.

Originally Posted by Debra Sabet

The inspector found no mold. Taling with the relo has been getting us nowhere,

Does your state have licensing for mold inspectors?


A Brief Guide to Mold in the Workplace

"If you are in doubt about sampling, consult an industrial hygienist or other environmental health or safety professional with experience in microbial investigations to help you decide if sampling for mold is necessary or useful, and to identify persons who can conduct any necessary sampling."

Tell the relo company that the test is not a valid test unless done by one of those qualified people.

Originally Posted by Debra Sabet

Not true but again, we have no recourse, except the tresspassing issue wich in Ohio, it looks like he is guitly and relo for telling them to go in when they were told to contact US, not our agent.

File a trespassing complaint with the local police department. Then file a complaint with the Real Estate commission against the agent.

Then get your own mold specialist to do a proper job.

Originally Posted by Debra Sabet

Not true but again, we have no recourse, except the tresspassing issue wich in Ohio, it looks like he is guitly and relo for telling them to go in when they were told to contact US, not our agent.

Originally Posted by John Ghent

File a trespassing complaint with the local police department. Then file a complaint with the Real Estate commission against the agent.

The trespassing aspect would depend on the agreement they had with the agent. All agreements I've had with agents in selling houses has given them the authority to allowed basically any and all necessary people into the house: inspectors, appraisers, prospective buyers, basically any and all interested people. Thus I'm not sure the trespassing thing will stand up to scrutiny - she needs to check her contract for language which specifically and exclusively requires the agent to *not* allow any one into the house without her specifically and exclusive permission ... I'm guessing that language will not be there, but instead there will be language allowing the agent to act on her behalf in allowing people into the house.

This part I fully agree with John on:

Then get your own mold specialist to do a proper job.

And make sure the specialist if qualified above reproach, not just another off-the-self-1-2-3 day or even 1 week training for "mould testing/sampling", get a real industrial hygienist type.

Originally Posted by Debra Sabet

I don't want to take it out on the mold guy because he was told to go the property without permission by us from the relo. The point on tresspassing is that if the relo co committed tresspassing, the test should not be valid? I would think since you cannot use evidence collected without a search warrent for someone who kills someone. I would think the test should be null/void because it was taken while committing a crime. IMHO In addition, we are going the inconclusive route as well, but they are acting dumb like they don't see it as a problem that it's a report non-report (saw that on the internet sounded good) and we have no idea what to do now.

The report in your eyes might not be valid. But, a test was performed and now the Relo company knows all about it. Regardless if your home does not have mould the Relo company thinks it does and they are not likely to change their stance. This is why you need to go to your company HR person who is over relocation's. They are the ones who can fight for you with the Relo company.

I use this little phrase often: He who has the Gold, makes the rules! The Relo company is holding the "Gold" so they are in essence making the rules. On the other hand, your company also holds the "Gold" in that they are paying the Relo company to help in your relocation, etc...

Every home on the planet has mold. The fact that yours may have tested for mold is ridiculous due to that fact. What kind of mold. How extensive is the mold. Will it take a few hundred to get rid of the mold or multiple thousands.

If mold was found in one small area then this is not a big deal. It will be a minimal cost to you in comparison of not moving the home.

As far as I am concerned I have never seen a contract anywhere that gives and agent the full clear passage to enter the home anytime they wish night or day for any reason (unless you gave that permission up front). Vacant homes are a different story. With no one in the home there is no reason for the agent not to let anyone in *unless* you have explicit timely notice not to let anyone in at a particular time or even a particular individual.

Again, every home has mold. It is a sorry fact that all these companies or banks or whomever require a mold remediation company when most of the time it is an hour clean up and finding a leak. Mold remediation generally means thousands of unnecessary spent money. Sometimes it is a squirt of bleach because there is no longer a leak or water/moisture problem.

Sorry to come late to the party but I just picked up this thread. I have to make a point of legality. The actual trespass (entering in or upon a land without lawful permission) may or may not be a crime in your State. Check the State Penal code and requirements for clarification. Having entered, it may be that the 'trespasser' must be required to leave by a person having authority over the premises and failed (or refused) to do so before the actual trespass is complete. The act of trespassing is far more complicated than most people realize and more likely a civil tort rather than criminal activity. (It is very different than entering a premises with the intent to commit a criminal activity or having entered actually committing a crime). At best the trespassing activity is a low grade misdemeanor and unlikely to be pursued by the law enforcement authority. Secondly, the act of taking the air sample is not subject to 'warrantless' searches (Criminal activity) because the act of trespassing may be only civil (tort) in nature. The law doctrine you were referring to in your original post is one of 'fruit of the poisoned tree' - but that only applies to criminal activity. e.g. If a police officer (for no just cause) illegally enters a property and discovers some evidence (there are exceptions), then that evidence and any other evidence which is discovered directly as a follow-up from the initial discovered evidence may be disallowed in criminal procedings. The premises, in this case is the tree and any ensuing evidence is the fruit. However, because the premises were entered illegally, the tree becomes poisoned, as does any fruit of the illegal entry. Unfortunately you may be trying to combine criminal law procedure with civil law and only civil action is available as a remedy.

Under civil law you may only have a case for damages if you can show you suffered a loss or were harmed in any way. In and of itself, entering the premises and taking the sample would not appear to have caused specific or identifiable harm. Any adversity caused to you later by using the sample may be actionable in civil court but you would have other issues to prove such as malice, forgery, mis-appropriation, libel etc.

Originally Posted by Ian Page

Under civil law you may only have a case for damages if you can show you suffered a loss or were harmed in any way.

They are being harmed ... significantly harmed ... by that.

There was also a theft ... ... of the tested and taken mold spores, and their value is deemed to be the value of the house as the relo company is trying to get out of taking the house.

Jerry, just because you consider the value of the mold spores as being akin to the value of the house doesn't make it so in the eyes of the law. I doubt you will find any legal precedence to support your theory, certainly not in support as it applies to criminal activity. At a stretch, given the facts as they are reputed to exist, the 'alleged illegal trespass and accumulation (theft) of mold spores', could provide a prima facie case of residential burglary. However...now it gets complicated....the spores have to be aknowledged to exist, have to have ownership, have to have their own specific value or valuable consideration and the owner must be permanently deprived of them (being held for purposes of examination is not necessarily permanent deprivation). Aknowledging their existence alone defeats further legal procedure. It's... "Hey you illegally got my spores which I don't agree are spores in the first place nor do I think they exist but if they do, are worth hundreds of thousands of dollars..." Try and find any prosecutor who would run with that.

IMO any Civil tort regarding the alleged trespass et al, will be a long and up hill battle, not worth the cost of attorney fees. In civil court, the air sample stands, irrespective of how it was obtained. Again, IMO, trespassing to obtain it doesn't make it null and void. Whether it is allowed or permitted into evidence, in a court setting, is up to a Judge to decide.

YOU GO GIRL! But I think you still need to take a proactive approach and spend some money on an independant review by a qualified individual...and document everything you do...including phone calls, letters, faxes, research.
Get'r done.