QUESTION: We have a mentally ill homeowner who does not take his medication. His screaming and rants are scaring other owners. Two owners have lost tenants as a result. Young women in the complex are scared. Police and security have been called countless times and say they can't do anything because he has not threatened anyone. He stays up all night yelling, screaming, and using foul language. He is an owner, and his family ensures his dues are current. Is there anything we can do?
ANSWER: From what you described, it is clear the parents are warehousing their son in your association. Your complex is a substitute for a more costly mental institution.
Possible Discrimination?
Sometimes boards believe they cannot take action because it would be deemed "discrimination" against disabled people and violate state and federal laws. While associations cannot discriminate against owners with a disability, they can take action against someone with a mental illness who disrupts, threatens, and destroys the quiet enjoyment of others. Failure to address the problem can result in reduced property values for units surrounding the mentally ill resident. It could also result in a lawsuit against the association for failure to stop the nuisance.
How to Address Mental Illness Issues
Paper Trail. To properly address the issue, boards need a paper trail. Residents and management should keep logs of their interactions with the problem owner and submit them to the board so there is a record of the frequency and seriousness of the problem. The log can then be used for everything that follows.
Health Services. Various social service agencies can sometimes be helpful. Counties generally have programs such as adult mental health services and adult protective services. They can assist those with physical, psychological, or developmental disabilities. Unfortunately, they generally require the person's cooperation with the problem, which is not always forthcoming. If appropriate, authorities sometimes place the person in a 72-hour psychiatric hold as provided in Welfare & Institutions Code § 5150. Then, they are back on the street. Still, it's worth a try.
Family. Management might contact his family, but even this has problems. Because of medical privacy laws, disclosing private aspects of his medical condition to others could create problems. Even so, a carefully worded letter to parents could prompt action. In one association, a lawyers letter to the owner resulted in the removal of the problem adult child and the sale of the unit.
Hearing. If the polite avenues fail, the board can initiate disciplinary action. The following steps should be followed: (i) send a cease and desist letter, (ii) hold a hearing and levy fines, (iii) offer ADR, and finally, (iv) file a lawsuit. Depending on the level of mental illness, steps one, two, and three may not affect the person. Even so, they are essential for showing the court that the association exhausted all other avenues before taking legal action.
Protective Order. If an association is forced to file a lawsuit, the complaint will be for breach of the nuisance provision of your CC&Rs and possibly harassment (depending on the circumstances). If the person threatens to harm others, the association can seek a temporary restraining order without notice to the opposing party. (Code Civ. Proc. § 527(c).) An injunction would likely include a stay-away order, an order to cease creating a nuisance, and a communication protocol. Even then, depending on a person's mental illness, he may not understand the order or, if understood, be unable to comply. That means the association will be back in court again.
Amend CC&Rs. Boards also consider amending their CC&Rs to give the association the right to evict tenants (not owners) who violate the CC&Rs.
Recommendation: Boards should work with legal counsel to address this complex problem. Unfortunately, it will be slow and costly, but you must follow the steps I described if you hope to be successful.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.