HOARDERS

QUESTION: We live in a condo complex. One of our members has his unit filled to the ceiling with all kinds of debris, mostly combustible. According to our management company the HOA can do nothing to get him to clean up his unit and put it in a safe condition. Only after something happens in the unit, such as a fire, can anything be done. Is this correct?

ANSWER: You don't need to wait for a fire. Addressing the issue, however, will be difficult and may require litigation depending on whether the person is a hoarder or merely a poor housekeeper.

Poor Housekeeping. The courts have already decided that associations cannot expect judicial relief if someone is merely a poor housekeeper. One association inspected an owner's unit and found it in disarray. The board demanded that he cease using his downstairs bathroom for storage, clear his bed of all paper and books, remove boxes and papers stored in his unit, and remove all clothing he had not worn in the past five years. Books that were considered "standard reading material" could, however, remain in place. The matter ended up in court.

Although the association claimed the clutter was a fire hazard, the fire department disagreed and so did the court. The judge scolded the association for its "high-handed attempt to micromanage" the owner's personal housekeeping. "Particularly galling" to the court was "the presumptuous attempt to lecture Cunningham about getting rid of his old clothes, the way he kept his own bedroom, and the kind of reading material he could have." (Fountain Valley Chateau Blanc v. Dept. of V.A.) The lesson from the case is that the clutter in a unit must represent a true health and safety issue before an association can take action. Such is the case with hoarders.

Hoarders. Hoarding is a mental illness sometimes referred to as "Collyer Syndrome" after two brothers who lived in Harlem in the early 1900s. They were compulsive pack rats who collected junk for decades. Both were found dead in their 4-story brownstone surrounded by 140 tons of junk and debris. (See Wikipedia article.) As it was with the Collyer brothers, hoarding can be life-threatening not only to the hoarder but to other residents in a condominium development.

The debris in a hoarder's unit will attract and breed roaches, ants, silverfish and rodents that then spread to the common areas and other units. In addition, the damp, unsanitary conditions become a breeding ground for mold and bacteria that migrate into common area walls and HVAC ducts. Finally, the mountains of debris in a hoarder's unit become a fire hazard. If the association becomes aware of the problem and does nothing, it can be liable for damage to surrounding units and health injuries to other residents.

Inspecting the Unit. A board might learn of a hoarder's presence when tracking down a water leak, looking for the source of insects or from complaints of foul odors. When such problems are traced to a particular unit, the association has a duty to investigate. All condominium CC&Rs have (or should have) an inspection provision allowing the association to enter a unit to inspect and repair the common areas surrounding a unit.

If the suspected hoarder grants access, the person making the inspection should be accompanied by a witness to guard against claims by the hoarder of harassment, theft, damage to property, etc. The witness can also help document (and testify to) the condition of the unit.

More often than not an inspection request will be denied. Hoarders are often reclusive and embarrassed about their living conditions or, worse, the sickness has reached a level where the person is paranoid the association will steal their treasured possessions. If access is denied, a disciplinary hearing should be held and daily fines levied to encourage cooperation by the hoarder. If the hoarder continues to block access, a court order may be needed.

Public Agencies. If the inspection reveals health and safety hazards, the condition of the unit will need to be thoroughly documented (preferably with photographs). Demands can then be made to clean the unit. A hoarder's sickness will often prevent him from complying with the demand. At that point, city/county health services and the fire department should be contacted. Public agency documentation of the conditions in the unit will be useful if subsequent litigation is warranted.

Case Law. A hoarding case in Tennessee is instructive. The grossly unsanitary conditions and extremely offensive odors in a unit in the Windsor Tower Condominiums created a nuisance and posed a threat to the health and safety of other owners. One witness who had been allowed in the unit testified that "the odor was so strong and offensive that he had to cover his mouth and nose because it caused him to gag." There was testimony of "rotten food on floors and furniture, cabinets covered in rotting food, and a bathroom with a buildup of scum and urine." In addition, mold was growing on windows, walls and curtains.

The association became concerned about the airborne bacteria and mold circulating from the hoarder's unit into the building's shared HVAC system. After protracted unsuccessful attempts to resolve the problem, the association filed suit. The CC&Rs had a provision that allowed the association to take possession of the unit and sell it. Accordingly, the board sought judicial sale of the condominium.

The court ruled for the association. It held that a forced sale of the unit was appropriate because of "Ms. Harris’s continual denial that any odor existed, the Association’s repeated and generous efforts over more than a year to help remedy the problem, Ms. Harris’s continuing failure to remedy the situation, and the gravity of the nuisance created by Ms. Harris and its impact on the other residents." (4215 Harding Road HOA v. Harris.)

Recommendation: Because hoarding is an illness, associations cannot expect a quick, inexpensive solution when it discovers a hoarder in their midst. Accordingly, they should budget for extra legal expenses since court intervention will likely be needed to force resolution.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.