It's a condition that affects between three and five percent of all Americans, both men and women. With an aging baby boomer generation, experts predict that the problem is only going to get worse. It’s called hoarding and for condominium associations, particularly those with attached units, it can be very expensive and difficult to confront. For instance, in one particularly egregious case in New York City, an association spent more than $150,000.00 in legal fees and took two years to obtain a court order to clean up a hoarder’s unit. Because privacy and individual property rights are involved, weighed against the rights of other occupants to the peaceful and sanitary enjoyment of their property, dealing with hoarding can be complex and must be sensibly addressed.
The first step to successfully dealing with a hoarding situation is to understand that it is a mental illness. In 2013, the Diagnostic and Statistical Manual of Mental Disorders, or DSM-5 (the handbook for mental health experts), specifically recognized hoarding as a mental disorder:
Hoarding disorder is characterized by the persistent difficulty discarding or parting with possessions, regardless of the value others may attribute to these possessions. The behavior usually has harmful effects – emotional, physical, social, financial, and even legal – for the person suffering from the disorder and family members. For individuals who hoard, the quantity of their collected items sets them apart from people with normal collecting behaviors. They accumulate a large number of possessions that often fill up or clutter living areas of the home or workplace to the extent that their intended use is no longer possible.
Hoarding is often linked to obsessive-compulsive disorder and anxiety disorder, although many cases of hoarding do not involve obsessive or compulsive behavior. Beyond the mental impact, cases involving hoarding are public health matters as the accumulated clutter creates fall and fire hazards and attracts pests. Quite often, a hoarder is not particularly distressed by his or her behavior, even though it is clearly harmful.
What is an association to do when faced with a hoarding situation? The best way to answer this question is to first point out what not to do, which is exemplified in Cunningham v Fountain Valley Chateau Blanc Homeowner’s Association, 1998 WL 761483 (Cal. App. 10/30/98). In that case, the plaintiff was a 63 year old retiree with Hodgkin’s disease. The Covenants, Conditions, and Restrictions (CC&Rs) for the community included a provision requiring owners to maintain the interior of their units in “a clean, sanitary, and attractive condition.” The CCRs also gave the association the right to inspect the interior of any unit.
The event that triggered the lawsuit was a complaint by a roofing company hired by the association that it could not maneuver its equipment adequately due to all of the clutter in the plaintiff’s yard. Despite an inspection by the Fire Department which resulted in no violation, the association pushed ahead with its demands that the plaintiff clean both the exterior and interior of his home, specifying, for example, where to take outdated clothes and where to dispose of any books that could not be shelved on a bookcase. A jury trial ensued, where the jury found for the occupant on the issue of liability. On appeal, the Appeals Court upheld the verdict, stating:
. . . [T]hese sections of the CC&Rs cannot reasonably be read to allow an association to dictate the amount of clutter in which a person chooses to live; one man’s old piece of junk is another man’s object d’art. The association’s rather high-handed attempt to micromanage Cunningham’s personal housekeeping – telling him how he could and could not use the interior rooms of his own house – clearly crossed the line and was beyond the purview of any legitimate interest it had in preventing undesirable external effects or maintaining property values. . . . When Cunningham bought his unit, we seriously doubt that he contemplated the association would ever tell him to clean up his own bedroom like some parent nagging an errant teenager. If it is indeed true that homeowner’s associations can often function ‘as a second municipal government,’ then we have a clear cut case of a ‘nanny state’ nanny in almost a literal sense going too far.
For the privilege of being so admonished by the appellate court, the association paid more than $34,000.00 in legal fees.
Now that we know what not to do, how should an association proceed when faced with a hoarding situation? The first step the association should take is to contact the authorities – the Health Department, Building Department, or Fire Department of the local municipality. If they are willing to handle the situation, the association’s board of directors is insulated and otherwise not involved. Another resource may be a social worker or family member, although privacy considerations impose some restrictions on involving either. Ideally, unless the hoarder lives alone, a family member will be aware of the association's concern and the hoarder will authorize the association to communicate with that relative. Alternatively, and as often happens, the hoarder may be occupying the home of another relative, and communication with the co-owner would be entirely appropriate. In more serious situations, where the safety of the hoarder's neighbors is jeopardized, it would be appropriate for the association or its attorneys to contact mental health authorities to register concern and prompt action.
Failing enforcement by the local authorities, the association’s board of directors should proceed prudently, one step at a time. They should start with the least intrusive, least confrontational approach. Speak with the hoarder and explain that the situation is a nuisance and a health and safety concern and ask the co-owner to clean up the unit. Likely that will not happen, as most hoarders do not perceive their clutter as a problem and often won’t accept help if it is offered, but the association's efforts may prompt attention from a relative, or, if nothing else, establish that the association exhausted all reasonable efforts before seeking judicial intervention.
The next step should be a letter from the board or the association’s attorney pointing out that the co-owner is in violation of the condominium documents and specifying a date by which the co-owner must come into compliance. Often, the severity of the problem is unknown, so access to the unit is required. Our firm has had success in many cases by simply quoting the relevant portion of the documents that allow the association to have access to the unit and requesting that the co-owner contact the association’s management company by a certain date to allow access.
In the event the co-owner does not respond and address the violation letter, the association will need to obtain a court order requiring the co-owner to clean the unit or authorizing the association to clean the unit at the co-owner’s expense. While condominium documents typically authorize the association to enter a unit to deal with an emergency situation, court officers are not going to enter a unit without a court order, and the possible negative consequences of the association resorting to self-help are obvious. While it may be prudent to invoke the right of access without more than a locksmith to shut off the water in a vacant unit with a burst pipe, it is an entirely different manner to enter someone's home to abate what may not otherwise be a need for immediate action. Our firm therefore recommends a "belt-and-suspenders" approach that cautions restraint until a court order is obtained and restraint thereafter by entering the unit only with the accompaniment of a court officer, whose presence is provided for in the court order. The order should also specify how the hoarded material will be treated, such as permitting obvious trash or refuse to be discarded and requiring the association to itemize any materials removed to a storage location at the co-owner's expense. Providing as much specificity as possible in the court order by defining what is trash or refuse and detailing the protocol for the association's involvement will help avoid future legal problems.
Associations, when confronted by a hoarder, should immediately document every event and attempt to mitigate the problem. Judges have a high regard for the privacy and property rights of individuals and will not tread lightly on them. They will want to see that the association did everything in its power and within reason, short of litigation, to resolve the hoarding problem. Correspondence, email, notes regarding telephone and person-to-person contact should all be documented and kept in a correspondence folder.
To obtain a court order, the association will need persuasive evidence. Blanket assertions that the co-owner's unit is messy or cluttered are not likely going to persuade a judge. Photographs, affidavits from a board member, property manager, neighbor, vendor, or other third-party who has been in the unit, and certainly citations issued by local authorities, can go a long way toward persuading a judge that action is necessary.
Successfully handling a hoarding situation takes organization, persistence, patience and, perhaps most of all, professionalism. A lack of understanding regarding the individual’s condition and heavy-handedness can lead to a negative outcome for the association. Instead, the association should recognize that hoarding is a mental disorder, and should then proceed cautiously, step-by-step, until either the co-owner cleans the unit or the association has the proper legal authority to do so itself.
Our firm provides legal counsel on all aspects of homeowner association operation including, among other things, subdivision document drafting and enforcement, assessment collection, owner bankruptcy issues, corporate governance, service contract drafting and review and general litigation.