Published on: November 4, 2015
The Massachusetts Housing Finance Agency defines hoarding as: “the acquisition of, and inability to discard items even though they appear (to others) to have no value. Living spaces (are) sufficiently cluttered so as to preclude activities for which those spaces were…designed. [It causes]…significant distress or impairment (to tenant, others in building, owner, etc.)…”
Hoarding may be discovered in community associations under a variety of circumstances, including but not limited to during routine inspections, in connection with investigations into the source of a water and/or plumbing leak, or from complaints from other residents regarding odors or pests.
When a hoarding situation is detected and/or discovered, a demand should be made upon the Unit Owner to clean and restore the Unit within a finite period of time. Additionally, the association should arrange for a follow up inspection of the Unit to ensure that it has been properly cleaned and restored.
The amount of time that the association affords the Unit Owner to clean and restore the Unit should be dependent on whether there are additional aggravating factors present, such as a pest or rodent infestation and/or possible mold. In such circumstances, it is important that immediate action be taken to address the issues within the Unit, without undue delay.
If the Unit Owner/occupant has known relatives, the association may also consider communicating with them to provide assistance. Additionally, the association may consider contacting elder affairs, veterans’ affairs and/or social services, as additional resources for providing assistance.
Reaching out to the local Board of Health and/or Inspectional Services Department to provide assistance with a hoarding situation may be a “double-edged sword.” While the local agency has the authority to issue orders compelling the clean-up and restoration of the Unit, the local agency may potentially hold the association ultimately responsible for doing so. Additionally, upon being summoned to the property, the local agency may do an inspection of the entire property and all common areas which could expose the association to liability for making repairs and/or addressing deficiencies.
If the situation within the Unit cannot be resolved within a reasonable period of time, then the association may consider filing an action for injunctive relief to compel the clean-up and restoration of the Unit. While most Courts are willing to assist the association in compelling the Unit Owner to comply with the documents and to clean and restore the Unit to a habitable condition, some Courts may take the position that the association should not unnecessarily interfere with the Unit Owner’s peaceful possession of their Unit. Accordingly, any request for injunctive relief necessarily requires a balancing of the equities, and the interests of both the Unit Owner and the association.
When filing an action seeking injunctive relief, particularly in the hoarding situation, it may also be advisable to name any mortgagee of record as an interested party to potentially intervene and restore the Unit, as it is their collateral at stake.
When requesting injunctive relief, the association should seek an Order that the Unit Owner/occupant be compelled to clean and restore the Unit, and in the event that they fail to do so within a reasonable period of time, the association should request authorization from the Court that it and/or its agents and/or contractors and/or assigns be permitted entry into the Unit to take any and all action necessary to clean and restore the Unit in a condition deemed acceptable to the local Board of Health and/or Inspectional Services Department, and to assess all costs/expenses related to the same against the Unit. In the event that the Unit Owner/occupant refuses access, the association may also consider seeking an Order permitting it to gain access into the Unit using reasonable force, including but not limited to changing the locks to the Unit.
If injunctive relief is necessary and authorized by the Court, then the association should document all entries into the Unit and photograph the existing condition prior to cleaning and/or restoring the Unit and/or undertaking any remediation, and thereafter, the progress of the cleanup and restoration of the Unit. Additionally, if the association disposes of any materials within the Unit in accordance with a Court order, a detailed inventory should also be kept. Any persons entering the Unit should be accompanied by at least one other person in light of liability and safety concerns.
In Massachusetts the costs and expenses incurred by the association to compel the cleanup and restoration of a Unit in order to enforce the association’s governing documents may be assessed to the Unit in accordance with G.L. c. 183A, §6(a)(ii), and will constitute a lien upon the Unit until paid in full.
Ultimately it is important to bear in mind that while hoarding may present a threat to the health, safety and well-being of the association’s other residents and occupants and poses a risk of property damage, it is not often a conscious choice on the part of the person hoarding, so the process of cleaning and restoring the Unit is often times a more collaborative than combative endeavor.