Adams Stirling PLC


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 makes sure 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? Some believe associations cannot take action because it would be deemed "discrimination" against the disabled and violate state and federal laws. While associations cannot discriminate against owners with a disability, it is also true that someone with a mental illness disrupt, threaten, and destroy the quite enjoyment of others. Failure to address the problem will 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. There must be a balanced approach when this problem presents itself.

Paper Trail. To properly address the issue, you need to create a paper trail. Residents and management should keep logs of their interaction with the problem owner and submit them to the board so there is a record of the frequency and seriousness of the problem. This can then be used for everything that follows.

Health Services. There are various social service agencies you can call that are sometimes helpful. Counties generally have programs such as adult mental health services and adult protective services. They can assist those with physical, mental or developmental disabilities. Unfortunately, they generally require the cooperation of the person with the problem, which is not always forthcoming. If appropriate, authorities will sometimes place the person in a 72-hour psychiatric hold as provided for in Welfare & Institutions Code § 5150. Then, they are back on the street. Still, it's worth a try.

Family. You might contact his family but even this has problems. Because of medical privacy laws, you could find yourself in hot water if you disclose private aspects of his medical condition to others. Even so, on occasion I have sent carefully worded letters to parents that prompted action. One resulted in removal of the problem child and 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 have no effect on the person. Even so, they are important for showing the court that the association exhausted all other avenues before taking legal action.

Protective Order. If you are 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 poses a threat of harm to others, the association can seek a temporary restraining order without notice to the opposing party. (Code Civ. Proc. § 527(c).)

Injunctive Relief. With the facts you described, you will be seeking a preliminary and permanent injunction. The injunction would likely include a stay away order, an order to cease creating a nuisance, and a communication protocol. Even then, depending on his mental illness, he may not understand the order or, if understood, unable to comply. That means you're back in court again.

Amend CC&Rs. You should also consider amending your CC&Rs to give the association the right to evict tenants who violate the CC&Rs. This is helpful when the problem person is a tenant.

Recommendation: You should work with legal counsel to address this difficult 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 issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC