Appeals Court Rules Condominium Trust an Indispensable Derivative Action Party

David M. Rogers 

A derivative suit is one that is typically brought when a condominium board has failed or refused to redress a wrong

committed against the association.  These lawsuits allow for a unit owner to step into the shoes of a condominium board and take legal action when the board is otherwise unwilling to advance a claim.  In the past, it may not have been common practice to name the condominium board as a defendant in a derivative claim lawsuit.  This was likely based on the thinking that it was counterintuitive to bring an action “on behalf of the board” and against the board as a defendant.  However, a recent appellate decision has caused condominium law attorneys to take note that the association is a necessary party.

In an unpublished decision, the Appeals Court determined that a condominium trust is an indispensable party to a derivative action. In Hyman v. Conway, 105 Mass. App. Ct. 1118 (2025), the Court’s ruling provides that a failure to name a condominium trust as a party to such a lawsuit provides grounds for dismissal.

The plaintiff, Marita Hyman, owned a condominium unit at the Westport Point Condominium – a residential community consisting of seven “cottage style” units.   The defendants, Christine and John Conway, built an addition onto their condominium unit at Westport Point that extended into the Condominium’s common area.  The defendants did not seek Ms. Hyman’s approval for the addition – apparently in contravention of the Condominium’s governing documents as well as G.L. c. 183A, § 5.

Ms. Hyman filed suit in Bristol Superior Court claiming that the Conways improperly built an addition onto their unit – and into the Condominium’s common area – without seeking approval from all of the unit owners.  She brought two claims for declaratory judgment, seeking an order for the removal of a porch and stairs attached to the Conways’ unit, as well as declarations that such construction encroaches on a common area and violated the plaintiff’s “lawful right to review the proposed building plans” under the condominium bylaws.  The Conways moved to dismiss the complaint – arguing that Ms. Hyman lacked standing to advance a claim concerning the common area of the Condominium.  The common area of the Condominium, the Conways contended, was within the purview of the condominium trust – not the individual unit owners.  The Conways further argued that Ms. Hyman failed to join the condominium trust as a necessary party to the lawsuit.

The trial court (Sullivan, J.) ruled in favor of the Conways.  The Court construed Ms. Hyman’s complaint as a derivative action, as she had made written correspondence to the board of trustees and attempted to discuss the subject porch at an annual meeting in an apparent attempt to meet the pleading requirements of Rule 23.1 of the Massachusetts Rules of Civil Procedure.  The court then reasoned as follows: 

In a derivative action seeking to compel the action of an association which has failed to redress a wrong committed against the trust, the trust is both an entity which would be affected by the declaration and also one of the parties which would have had to answer to a judgment in the plaintiff’s favor to effect complete relief.  Thus, the trust is an indispensable party to this action.  (Internal quotations and citations omitted).

The court allowed the Conways’ motion to dismiss – finding that Ms. Hyman failed to join the condominium trust as a necessary party.  Ms. Hyman appealed the trial court’s decision.  Before reviewing the Appeals Court’s decision, it helps to have a general understanding of a properly pled derivative action.

A Derivative Action

A proper derivative action is a lawsuit brought by one or more unit owners to enforce a right of the association.  The derivative claim is an effective device in two primary circumstances: (1) to advance breach of fiduciary duty claims against sitting board members, and (2) to advance claims against a declarant or declarant-controlled entities while the declarant controls the board or when the declarant, as unit owner, still controls enough of the percentage interest in the condominium to elect its own slate of board members.

Procedural Requirements

The proper maintenance of a derivative claim requires strict compliance with certain conditions precedent as follows:

• Demand on the Board

Demand must be made on the board, requesting that it take action (i.e., institute suit against individual board members and/or the declarant) unless futile.

• Demand on the Unit Owners

Demand must be made on the unit owners to take action to compel the board to act or to otherwise secure the desired course of action (e.g., removal of the board) unless such request would prove futile (e.g., declarant owns or controls 90 percent of the beneficial interest) or too burdensome. 

In most circumstances, it is advisable to make the demand to avoid any claim that demand was not futile.  Counsel may have to take a calculated risk when there is a concern that such demand may telegraph an intention to file suit and cause the declarant to secret or convey assets.

Pleading Requirements

A complaint for a derivative action shall:

• be verified by oath,
• allege unit ownership at the relevant time or purchase from an owner who owned at the relevant time,
• allege efforts made to obtain action from the board,
• allege efforts made to obtain action from the unit owners, and
• allege reasons no such efforts were made.

In addition, in order for a derivative action to be maintained, it must appear that the plaintiff fairly and adequately represents the interests of the unit owners similarly situated.  Finally, the action cannot be dismissed or settled without (1) court approval, and (2) notice to the unit owners of same as directed by the court.

Common Pleading Deficiencies in Derivative Suits

The derivative suit is often misused or misapplied by unit owners.  There are several rules of thumb that can be employed in analyzing the appropriateness of derivative claims.  A derivate claim is deficient and subject to a motion to dismiss in the following circumstances:

1. The Claim Is Brought by Someone Other than a Unit OwnerThis criterion needs         no further elaboration.

2. The Wrong Complained of Was Committed Against Individual Unit Owners,         Not the Association

A wrong committed against a unit owner or unit owners may be brought by those individuals in their own name.  Owners who have suffered an injury have standing to bring claims in their own name (e.g., damage to unit interior, improper assessments, etc.).  Such claims are not properly brought as derivative claims.

3. The Recovery Is Sought for the Unit Owner(s) Alone

A unit owner’s request for recovery in a proper derivative action is made on behalf of the board.  When the recovery and/or relief requested is for, or on behalf of, the unit owners in their individual capacities, the claim cannot be properly brought as a derivative action.

4. The Claim Is for a Breach of Fiduciary Duty Owed to a Unit Owner

This claim is flawed for two reasons.  First, the board does not owe a unit owner any fiduciary duty.  Second, such claim clearly purports to advance (albeit otherwise flawed) a claim possessed by an individual owner, not the association.

5. The Lawsuit Is Advanced Without Naming the Association

We can now add another pleading deficiency to the list – failing to name the condominium trust as an indispensable party to the derivative action.  The Appeals Court affirmed the trial court's dismissal of Ms. Hyman’s lawsuit, reasoning that “[i]n such an action, the association must be joined as a party because the claim is alleged to be one that the association should be pursuing on its own behalf – here, a claim of unlawful expansion onto common elements.”  While unpublished (meaning that, although the case can be cited for its persuasive value, it does not constitute binding precedent), the Hyman decision provides a clear indication of how a court is likely to rule on this issue going forward.  A failure to name a condominium board as a party to a derivative lawsuit going forward would be a mistake.

Derivative claims present difficulties for even the most seasoned condominium law practitioners.  Although the trial court in this Hyman case was rather liberal in construing her lawsuit as a derivative claim, the procedural requirements of Rule 23.1, described above, actually prescribe fairly cumbersome prerequisites for filing a derivative action.  Care must be taken in order to avoid having such a lawsuit dismissed on a technicality, such as failing to name the condominium trust as a necessary party. 

A principal in the Quincy and Boston based firm of Moriarty, Bielan & Malloy LLP, Dave has been specializing in complex civil litigation at both the trial and appellate levels. He has extensive experience in the area of construction litigation. Dave’s practice is focused on construction, real estate, and condominium matters. His clients include condominium associations, real estate developers, general contractors, subcontractors, and individuals.  Dave can be contacted at brogers@mbmllc.com.

FinCEN Sued over Mandated Real Estate Reporting

 Lisa L Delaney

 Last April, a Texas-based settlement service provider, Flowers Title Company, LLC (“Flowers”) sued the U.S. Treasury’s Financial Crimes Reporting Network, known as

“FinCEN,”  in the U. S. District Court of Eastern District of Texas, Civil Action No. 6:25‑CV‑0027.  A month later, Fidelity National Financial, Inc. and Fidelity National Title Insurance Company (“FNF”) filed a similar suit in United States District Court, Middle District of Florida in Civil Action No. 3:25-cv-00554.

 These two cases challenge FinCEN’s rules, scheduled to take effect on December 1^st, with the goal of thwarting money-laundering by mandatory reporting on all residential purchases any amount by non‑individual entities, such as Corporations, LLC’s, trusts, etc., without an institutional mortgage.   The proposed rules also include no low or nominal consideration, or those transactions financed with a private mortgage.  These reports are mandated with no other evidence or indicia of illegal or suspicious financial or money‑laundering activity, other than the fact that an entity is taking title to residential property without an institutional mortgage.

 FinCEN exempts a few transfers, including those following death or divorce, and transfers to a trust for the grantor’s benefit and/or their spouse, but there are no specific exemptions for transfers from a trust back to the grantor nor to a trust for the benefit of the grantor’s children and other descendants.

 The mandated reports, consisting of 111 questions, are detailed and require the submission personal information of both the buyer and seller, including their bank account information, with 38 questions repeated for each principal buyer and 34 questions repeated for each seller, which can quickly add up to 200 or more mandated reported data.  FinCEN requires the seller’s information based solely on the buying entity without any suspicion the seller is interrelated to the buyer or connected to the buyer’s choice of taking title in an entity and not using an institutional mortgage.

 To date, FinCEN has only provided the111 questions, but has not provided the actual reports, thereby denying mandated reporters the opportunity to create training materials in the proper use of the government’s computer program and software.

 The two complaints include the following advocacy positions:

• There is nothing inherently suspicious about buyers using their own money. 
• Transferring property to a trust or legal entity without financing is legal and not inherently suspicious. 
• The proposed Rule will “ride roughshod” over private interests of routine real estate transactions. 
• Private companies are being conscripted into performing government surveillance. 
• FinCEN lacks authority to regulate or mandate reports on intrastate commerce without a connection to interstate or foreign commerce. 
• Mandating reports of all covered transactions with no suspicion of illegal activity exceeds any permissible warrantless search.
• The proposed rule exceeds Congress’ power to regulate interstate commerce and was promulgated “contrary to constitutional rights, power, privilege, or immunity” in violation of 5 U.S.C. § 706(2)(B).

These cases are similar to FinCEN’s now-withdrawn requirements under the Corporate Transparency Act (CTA) that attempted to require all businesses that file at its state secretary of state’s office, to also file mandated annual FinCEN reports on its business and principal.  This proposal was curtailed and canceled last much when FinCEN issued an interim final rule limiting CTA only to “foreign reporting companies.”   

The various CTA cases found that FinCEN’s attempted rule exceeded the Treasury Department’s constitutional powers. The Texas Court in Top Cop Shop, Inc. v. Garland, which includes a nation-wide injunction, found the CTA is likely unconstitutional and FinCEN does not have the right to regulate interstate commerce nor is the mere existence of a business entity, by itself, an act of commence, and adds “… the Commerce Clause does not justify regulating all companies based on nothing more than fear that a reporting company might shelter a financial criminal.”

Both the Flowers and FNF cases include prayers for declaratory and injunctive relief.  Neither complaint cites nor refers to the various CTA cases, although it is probable the same or similar arguments will be raised that FinCEN, through the Treasury Department and Congress, exceeded its constitutional powers, and citizens should have the ability to purchase a residence without an institutional purchase money mortgage and place title in an entity rather than their own names, which is not, by itself, “suspicious activity.”  

It is hoped the Courts will similarly find FinCEN’s real estate reports are likely unconstitutional and issue a permanent injunction against mandated real estate reporting on routine real estate transactions.

Co-chair of REBA’s Title Insurance and National Affairs Section, Lisa Delaney, owns the Braintree firm Carvin & Delaney, LLC, concentrating her practice on large commercial transactions, where she handles complex title research, providing detailed analysis of clear and concise facts. She negotiates and drafts commercial contracts with a focus on leasing and purchase agreements. Lisa can be contacted at ldelaney@carvindelaney.com.

Editor’s Note: REBA’s Title Insurance and National Affairs Section is scheduled to host two webinars on FinCEN’s mandated real estate reporting.  Former Association president Ruth Dillingham of Dillingham Consulting LLC will present the rule’s details and requirements on Wednesday, September 25th at noon and on Thursday, October 16^th at noon a speaker will provide a tutoring session on inputting data into FinCEN’s computerized reports, providing access to the government’s software is then publicly available.

These webinars could be postponed or canceled based on the Flowers, FNF or other lawsuits, or whether FinCEN, like with the CTA, revises the mandated real estate reporting to only foreign entities.

Environmental Law Update 2024-2025

 

Is An Offer to Purchase Really Binding? A Review of Deadlines, Defaults & Material Terms (Video)

 

Appeals Court Clarifies Permit Expiration Extensions

Nathaniel Stevens, Esq.

Perhaps surprisingly, only after the fourth time Massachusetts enacted legislation extending the life of most land use and

environmental permits, there is now an appellate-level court decision ruling that such extensions are added onto, rather than run concurrently with, the time period set by the law under which the permit was granted.  

In May, the Appeals Court ruled that two building permits granted for construction of a biomass-fired power plant in Springfield, MA benefited from extensions granted by the several permit extension laws and did not forego the additional time due to lengthy litigation challenging their validity. The case is Palmer Renewable Energy, LLC v. Zoning Board of Appeals of Springfield. 

Massachusetts law has long recognized the doctrine of litigation tolling for land use permits.  Under this doctrine, courts have applied equitable tolling when a permit has been challenged to avoid the futile situation of a permit holder not being able to exercise their rights under a permit if the litigation takes longer than or eats up any portion of the term of a permit. 

Certain statutes, such as the Zoning Act, codify equitable tolling to explicitly provide for tolling of the expiration date of a permit until litigation concludes. 

Regardless of whether a permit is challenged in court, for other reasons the Legislature in recent times has granted blanket extensions to a broad range of land use and environmental permits.  In 2010, legislation known as the Permit Extension Act, was enacted and then amended in 2012, resulting in permits in effect during the “qualifying period” between August 15, 2008, and August 15, 2012, being extended four years.  The Permit Extension Act was in response to the downturn in the state’s economy during the Great Recession around 2008. 

In response to the COVID-19 health emergency, the Legislature in 2020 enacted provisions tolling many of the same land use and environmental permits until the end of the Governor’s State of Emergency due to the pandemic. That State of Emergency lasted 462 days so permits that were in effect on March 10, 2020 were extended 462 days.   

Most recently, as part of an omnibus economic development bill, known as the Mass Leads Act, the Legislature included a provision to extend by two years many of the same type of land use permits if they were in effect at all during the period of January 1, 2023, to January 1, 2025.

The Appeals Court in the Palmer case was asked to resolve the question of whether the extra four years provided by the Permit Extension Act ran from the date two building permits were issued while the permits were challenged in court, or whether the four years began the date the litigation concluded.  The decision holds that they run not concurrently but rather consecutively. 

The Springfield building commissioner on November 15, 2011, issued two building permits to Palmer to begin construction of a biomass-fired power plant. While no expiration date was stated on the face of the permits, the parties and courts treated the permits as having a 180-day term.  Within a month of the permits being issued, the Springfield City Council appealed to the Zoning Board of Appeals (“ZBA”). The ZBA voted on January 12, 2012, to revoke the building permits and filed its decision with the City Clerk on March 8, 2012.  

Palmer appealed the ZBA’s decision by filing a complaint in the Land Court on March 26, 2012.  The Land Court on August 14, 2014, reversed the ZBA’s decision and reinstated the building permits.  The City and others appealed and, over a year later, on September 8, 2015, the Appeals Court affirmed the Land Court’s decision.  An application for further appeal was denied. 

Five years later, on October 14, 2020, twelve members of the City Council asked the building commissioner to issue a cease-and-desist order on Palmer’s construction on the grounds that the building permits had expired.  The request was denied and the City Council members appealed to the ZBA. On May 5, 2021, the ZBA voted to grant the relief and revoked the building permits and filed its decision 23 days later with the City Clerk.  Palmer appealed the ZBA’s decision in Land Court. 

In affirming the ZBA’s decision, the Land Court held that the extra time provided by the Permit Extension Act ran at the same time as that provided by the litigation tolling doctrine, concluding that the permits had expired May 13, 2016. 

In reversing the Land Court, the Appeals Court began its analysis recounting the several ways land use permits are extended by the doctrine of equitable tolling, automatic through statutory provisions, or following statutory or local procedures to request an extension.  

The Appeals Court then relied on the principle that when enacting a law, the Legislature is presumed to be aware of existing statutory and common law related to the subject it is legislating, so by starting extension provisions in the Permit Extension Act with the clause, “Notwithstanding any general or special law to the contrary”, the phrase “in addition to the lawful term of the approval” means that the four-year extension provided runs after, not concurrently with, any period provided by litigation tolling. 

The Appeals Court also was asked to decide what date is used to start the litigation tolling period.  Palmer asserted that it was when the City filed its appeal to the ZBA, 27 days after the building permits were issued.  The City maintained it was when the ZBA reached its decision and revoked them. Because of the dates involved, this was significant because depending on which date was used, the building permits could fall under the COVID-19 permit extension law and enjoy another extension.  

The Appeals Court decided that, in the context of this case where the City challenged a large and complex project by asserting it also needed a special permit, it sided with Palmer’s position. Adding the 153 days remaining on the building permits to the date when litigation finally ended on October 30, 2015, meant that the building permits expired March 31, 2016.  The Permit Extension Act extended these permits four years through March 31, 2020, thus affording the further extension under the COVID-19 permit extension law. 

While the facts and time periods in the Palmer case are complex and perhaps unique, the ruling is favorable to those holding state, regional or local land use and environmental permits. Equally, the decision should be noted by those administering or enforcing such permits as this case gives the permits longer life than may be expected.   

When using the words “notwithstanding any general or special law to the contrary” in special legislation extending such permits “in addition to the lawful term of the approval”, the additional time will be added to any other additional time afforded.  It does not run concurrently but rather consecutively with any other time periods granted under statutory provisions, litigation tolling, or granted extensions.   

Permit holders and their legal counsel should know about and keep copies of ALL four of the Massachusetts permit extension laws, the Zoning Act and other sources of statutory extensions, and the Palmer case applying the equitable tolling doctrine.

A member of REBA’s Environmental Law Section and a partner of McGregor Legere & Stevens PC, Nathaniel Stevens handles a broad range of environmental and land use matters, from administrative law to litigation. He has helped a diversity of clients with environmental issues including permitting, permit appeals, development, contamination, transactions, conservation, real estate restrictions, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.  Nathaniel’s email address is NStevens@mcgregorlaw.com.

Condominium Board Problems and Questions: Asked and Answered

 Mark S. Einhorn

The Problem: Our condo board does not always meet the quorum required to make decisions at board meetings.

The Answer:  Your board definitely should not make major decisions – increasing common area fees or approving a major renovation project, for

example – without a quorum.  However, you can deal with emergencies and make the day-to-day decisions required to operate the community outside of an official meeting.  When that is necessary, it is a good practice to ratify the decision at a future meeting when the quorum requirement is met. 

Some association bylaws specify that boards can act without a quorum in an emergency.  If your bylaws don’t contain that provision, the board might consider asking owners to approve an amendment including it, eliminating any question about whether an emergency decision was authorized.

If the lack of a quorum is a chronic problem rather than an occasional one, the board should try to identify any issues that are creating attendance obstacles.  Perhaps there are different days or times that would be more convenient for chronically absent board members. 

If the problem isn’t the timing of the board meetings but the behavior of the board members, the other trustees should confront them. Regular attendance should be a requirement for board members.  Those who can’t or won’t fulfill their obligations should be encouraged to resign. If they refuse, the board should consider using the formal process outlined in the association’s bylaws to remove them. 

Even if the board has a quorum, the absence of one or more members can result in tie votes that leave the board deadlocked on important issues.  Some boards deal with this problem formally, by adopting an arbitration or mediation requirement; others resolve tie votes less formally, by drawing straws or rolling dice.  The best strategy is for board members to craft a compromise resolving their impasse.  Although compromise seems to have gone out of fashion in recent times, it remains a desirable solution, if not always an easily achievable one.

The Problem:  A member of our board is not a team player – to say the least.  He regularly bad mouths decisions with which he disagrees, encourages owners to complain about the decisions and even to remove the trustees who supported them.  One board member thinks we should vote to remove him. Is that an option?

The Answer: No.  If this “rogue” trustee is an officer, a majority of the trustees could vote to remove him from that position.  But you can’t typically vote to remove him from the board unless the condominium documents give the board that authority.  Most association documents outline a formal removal process requiring a vote of the owners that you would have to follow.  And while that is an option, it is not the first one you should consider. 

Start instead by explaining the “duty of loyalty” trustees owe the board and the community.  That duty requires trustees to accept board decisions as final and to support publicly even the decisions they have opposed.  If this board member can’t accept that fundamental principle of association governance, he should resign.  If the board president or other trustees have already delivered that message, then it should come next from the board’s attorney in a sternly worded letter that also explains the removal option and the board’s willingness to pursue it. Sometimes the threat of removal is enough to persuade a rogue to change his behavior or resign.

Removal is a last resort, however, and an undesirable one, because it will require embroiling owners in a public and potentially divisive battle. Even if the trustee is ultimately recalled, the bitter feelings will no doubt linger.

If the board member’s term is ending, it would be better to wait for the annual election (assuming the wait is not too long) and either try to persuade him not to run for re-election or try to persuade owners to elect someone else.

But before initiating a vote to recall the trustee or campaigning against him, the board should consider what is motivating his behavior. Does he have a personal axe to grind; is he just seeking attention? Or does he have a good reason for questioning the board’s decisions?  You should consider the board’s behavior as well as his.  What if this rogue is right and the rest of the board is wrong?  It’s not likely, but it is a question you should ask and a possibility you should consider.

A partner in the Braintree firm of Marcus Errico Emmer & Brooks P.C., Mark concentrates his practice on transactional and condominium law.  He advises condominium associations and association managers on all matters affecting condominium communities, including:  governance issues, rules enforcement, lien enforcement, asset management, casualty loss claims, document amendments, land acquisition and development rights, election and transition procedures, contracts and general liability issues.  Mark can 

Hoarding Is a Disability: Boards Must Treat it Like One

 Matthew W. Gaines

“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.