November 26, 2014
The Council of The Pointe at Bethany Bay Condominiums
Date Submitted: July 8, 2014
Dear Ms. Higgins, Mr. Higgins, and Mr. Valihura:
This is the unfortunate continuation of a long-running dispute between Plaintiff The Council of The Pointe at Bethany Bay Condominiums (the "Council") and Defendants Michele A. Higgins and Terrence S. Higgins, who own a unit at The Pointe at Bethany Bay Condominiums (the "Condominium"). The question is whether there is mold that needs remediation in the common elements of the Condominium's structure adjacent to Defendants' unit. By its letter opinion of February 28, 2014,  the Court concluded that if, through a proper and current study, the Council established that there is mold that requires remediation, the Council would be entitled to summary judgment and access to the Defendants' unit in the course of performing necessary scope of work analysis and remediation.
The Council arranged for yet another study by an independent and competent industrial hygienist who reported:
It is the professional opinion of Sussex Environmental that the recent results and the change in mold spore concentrations from previous results substantiates the conditions in the condo unit and adjacent units is not improving but may be deteriorating. This requires immediate attention to further assess the extent of the microbial growth in the wall cavities along exterior wall and between the units in order to prevent further damage to structural materials and to health of occupants.
Those conclusions were based in part on the evaluation and sampling of the property performed by Sussex Environmental on April 7, 2014.
The Defendants have not identified a viable basis for claiming that mold is not present or that remediation (or at least more detailed study in the areas behind the unit walls) is unnecessary. Instead, they criticize the recent study (and other studies) performed at the Council's behest. Their criticism of Sussex
Environmental's efforts fall short of calling into question its conclusions. More importantly, they offer no reason, not previously presented in substance, for the Court to substitute its judgment for that of the Council or to question the independent and objective study of Sussex Environmental which performed the assessment.
Defendants have failed to identify and present a dispute of fact about the appropriateness of the Council's chosen pathway. Mold is present; remediation work may be necessary, but in order to determine the scope of any work, an inspection behind the walls is unavoidable.
Accordingly, summary judgment in favor of the Council is granted and Defendants must cooperate with the Council in allowing it and its contractors reasonable access to the unit for remediation of the mold in the common areas surrounding their unit and their neighbor's units. The final scope of the remediation work cannot be determined without a further inspection of the otherwise inaccessible common areas between the units, and that access is also confirmed by this decision.
IT IS SO ORDERED.
Very truly yours,
John W. Noble, Vice Chancellor