“This is a disgusting mess?” How many parents have said that about a teenager’s room? The number who have not said it would no doubt be considerably smaller – probably
close to zero. But in this case, the comment was coming from a condominium manager, who was describing the living room of an owner she thought was a “hoarder.” A parent can tell a teen, “Clean your room or else.” Dealing with an owner (“my home, my castle”) is obviously more complicated; dealing with a hoarder is several orders of magnitude more complicated still.
The key question is whether the mess the manager sees is the result of poor housekeeping or hoarding. It is a distinction with a critical difference, determining whether and to what extent the association’s board can or should intervene. The fault line will be whether the condition of the unit poses a threat to common areas, other units or the health and safety of residents.
The Nature of the Threat
There are two
types of hoarding: A -- the most
worrying type; and B – also worrying but less problematic than A.
Supreme Court
Justice Potter Stewart once said, famously, that he couldn’t define
pornography, “but I know it when I see it.” Distinguishing between these two
types of hoarding is easier. Weeks of unwashed
dishes stacked on counters and piled in the sink, garbage spilling out of
containers and onto the floors, papers stacked on top of the stove (or stored
in the oven), dozens of stray cats living in the unit without benefit of litter
boxes, the sight of pests or clear evidence of their presence, mold and mildew
growing on the bathroom wall -- these
conditions pose a threat to others because of the fires they can cause, the
odors and other unsanitary conditions and health hazards they can produce.
Excessive clutter
-- magazines, clothes and assorted objects covering the floors, boxes stacked
waist high -- pose a threat to the occupant, because emergency responders might
have trouble reaching him if he suffers a medical emergency. But the impact on other condominium units or
other residents isn’t immediate and so is less of a concern to managers and
boards.
Both types of
hoarding require a response, but the responses should be different. With Type B, the goal is to prevent a
potential threat from becoming an immediate one. Because the threat isn’t imminent, the
response can be gentler and the timeline for dealing with it longer. Type A requires a more urgent response,
because the threat already exists and the timeline for correcting the problem
must be shorter.
Whether you are
dealing with a Type A or Type B hoarder, you are dealing with someone who has a
disability. You have to treat owners
suffering from it sensitively and with respect. You shouldn’t immediately start
serving violation notices and imposing fines, because those aggressive actions
aren’t likely to be effective and equally important, because hoarding qualifies
as a disability. Imposing a fine - a
form of punishment - could be deemed illegal discrimination under both the
state and federal Fair Housing Acts.
How to Respond
At the same time,
you have to consider the impact on other residents. You can’t punish the hoarder, but you have to
protect the community. So the board has
an obligation to deal with the problem.
What should you do?
1. Start by verifying that you are dealing with a hoarding situation. Assess as best you can the extent of the problem. Is it Hoarding A, requiring immediate action, or Hoarding B, permitting a less urgent response?
2. Contact the association’s attorney. Because hoarding is a disability, there are Fair Housing Act implications, creating the potential for a discrimination claim and liability risks for the association. Legal advice will be essential.
3. Start with the least intrusive, least costly, and least heavy-handed measures and work up from there. Try talking to the owner first. If he or she isn’t responsive, try to get family members involved. Often, relatives either aren’t available or aren’t interested, but sometimes they are unaware of the problem and will step up if informed.
4. Contact local social services agencies: Elder Affairs if the resident is a senior, Veterans Affairs if you’re dealing with a veteran, can be helpful.
5. Get a hoarding expert involved. Some counties have created hoarding task forces with professionals who may be able to work directly with hoarders and/or advise boards on how to deal with them.
6. Contact local health and safety officials – the
Department of Health, the Fire Department or the Building Department. If the clutter violates health and/or safety
codes, these agencies may issue a citation ordering a clean-up. The obvious advantage: Local officials
rather than the board would be the ‘bad guys,’ enforcing the cleanup
order.
7. Go to court. Litigation is never the first choice, but it
may be necessary if you can’t persuade the owner to address the problem
voluntarily. Although the courts are often reluctant to intervene and tend to
move slowly if they do, you may be able to get a preliminary injunction
requiring an immediate response by the hoarder, if you can show that the
conditions in the unit pose a threat of immediate and irreparable harm to
others. Take pictures if you can; they
will provide the best evidence documenting your concerns. Affidavits from the manager, board members or
residents who have seen the conditions first-hand can also be persuasive.
8. Require ongoing monitoring. The goal is to get the unit cleaned, but hoarding is a disease and eliminating the clutter won’t cure it. That’s why you want a court-ordered clean-up to include an inspection requirement. If no one is watching, the hoarding problem you think you have solved may recur. The advantage of obtaining a court order: If the owner violates it by failing to clean the unit or by failing to keep it clean, you can ask the court to enforce the existing order. You don’t have to seek a new one.
Dealing with a hoarding situation requires diplomacy, patience and sensitivity both to the owner who is suffering from a disability and to the other residents who are affected by the owner’s behavior. Strategies that balance those competing interests have the best chance of producing a long-term solution that works for everyone.
Co-chair of REBA’s Legislation Section, Matt Gaines Matt is a partner in Marcus Errico Emmer & Brooks, P.C., concentrating his practice on commercial and residential real estate acquisitions, as well as condominium and community association law. Matt can be contacted at mgaines@meeb.com.
