Published on: April 20, 2012
Hoarding is in the news again. A Tennessee Appeals court recently upheld a lower court ruling evicting a condominium owner from her unit and terminating her ownership rights. Agreeing that the owner’s hoarding, and the nuisance and health threat it created for other owners, violated the association’s covenants, the court approved the board’s request that the unit be sold and the proceeds used to repay the more than $100,000 in legal costs the association had incurred in its efforts to deal with the problem.
In a unanimous opinion (4215 Harding Road Home Owner Association v. Harris), the court concluded that the judicial sale of the property was not only the “appropriate remedy,” but “the only remedy” possible, considering the owner’s continuing failure to resolve the problem, the severity of the nuisance she created, its impact on other residents and the association’s “repeated and generous efforts” to help the owner eliminate the clutter in her residence and the “grossly offensive odors” about which other residents of the community had complained.
Like all hoarding situations, this one was unique and its resolution doesn’t necessarily suggest a blueprint that other communities should follow or can expect other courts to follow. Among other unique features, this condominium association’s covenants contained language specifically authorizing the association to sell a unit if its owner violated the covenants or bylaws and refused to cure the violation after being informed of it.
More Common and Better Known
You won’t find that remedy in many condominium documents, but you will find many condominium communities dealing with hoarders, or suspected hoarders, today. That’s not surprising, given estimates that between 2 percent and 5 percent of the population – about 6 million people – suffer from the illness, defined as “retaining items of no value in quantities that interfere with the ability to function.”
We certainly know a lot more about hoarding today and hear about it more frequently than in 1947, when the Collyer Brothers (Langley and Homer) were found dead in a New York apartment crammed with 130 tons of “stuff,” including 14 pianos and an intact Model-T Ford.
Spotlighted weekly in two reality television shows and the subject of a best-selling book (“Compulsive Hoarding and the Meaning of Things”), hoarding has been the focus of considerable research into its causes and treatment. Some medical experts have even suggested defining hoarding as a disease in its own right rather than as a symptom of obsessive compulsive disorder, which is how it is typically treated today.
However hoarding is defined, it is problematic, to say the least, in condominium communities, where uncontrolled clutter in one unit can spill over in many ways, attracting pests, creating a fire hazard, and otherwise threatening the health and safety of other owners.
While few communities have the authority to evict a non-compliant owner, virtually all condominium documents prohibit owners from creating a nuisance and require them to maintain their units in a safe and sanitary condition. Those provisions allow the board to insist on inspecting a unit, order the owner to clean it if conditions disturb other owners or pose a health and safety threat, and have the unit cleaned at the owner’s expense if the owner refuses to take care of the problem.
How the board proceeds depends on how the issue comes to its attention. When a maintenance worker in a community we represent found that an owner had not only filled her unit with debris but also disconnected the smoke detectors, we were able to obtain a court order quickly authorizing a clean-up, because of the obvious threat to the community. The fact that both the Health Department and the Fire Department had issued citations condemning the unit strengthened our argument that immediate action was justified.
It is much better to have a government agency – the Health Department, the Building Department or the Fire Department – handle the enforcement, if they are willing to do so. This allows the board and manager to avoid direct confrontations with owners that can be difficult and unpleasant. Unfortunately, local officials aren’t always willing or able to respond to hoarding complaints in condominium communities.
Some municipalities have established special task forces to deal with hoarding situations – an excellent resource, if available. Social workers or family members may also be willing to intervene and persuade the owner either to clean the unit or allow the association to arrange for the cleaning.
Step by Step
If enforcement falls to the board, it should start with the least intrusive, least threatening measures available and then escalate, if needed. Discuss the problem with the owner personally, if possible. Explain that the clutter has created a nuisance or a health or safety concern and ask the owner to take care of it.
Hope for the best, but don’t be surprised if this effort fails. Most hoarders don’t perceive the clutter as a problem and won’t accept help if it is offered. They often won’t allow board members or managers even to inspect the unit, let alone cooperate with efforts to have it cleaned.
If the initial outreach is rebuffed, the board should write a letter, or have its attorney do so, informing the owner that he or she is violating the nuisance and maintenance provisions of the bylaws or covenants, and specifying a time period within which the violation must be cured. The deadline you set should depend on the severity of the problem; we gave the owner who had disconnected the smoke detectors only five days to begin the clean-up; absent an emergency or imminent threat such as that, two weeks or even 30 days might be reasonable.
If the owner doesn’t respond to the violation notice, the board will have to seek a court order requiring the owner to clean the unit or authorizing the board to do so. The board may need a court order just to inspect the unit if the owner refuses entry. Although Orange County in California has enacted an ordinance allowing community associations to inspect the unit of a suspected hoarder, I am not aware of any other communities – certainly none in Massachusetts ― that have gone that far. While condominium documents typically authorize the board to enter a unit to deal with an emergency situation, police officers (whose back-up the board will want) typically won’t enter a unit forcibly, against an owner’s wishes, without a court order approving the action.
Documenting the Problem
To get a court order –either for clean-up or entry – you will need persuasive evidence that a hoarding situation exists or that you have good reason to suspect conditions that threaten the health and safety of the community and its residents. Persuasive evidence will entail much more than a neighbor’s assertion that the unit appeared “messy,” “cluttered” or poorly maintained. “Mess” and “clutter” like noise, are subjective. One person’s mess is another’s creative disorder; my desk may look cluttered to you but yours may appear obsessively neat to me.
If you are claiming that conditions in the apartment are sufficiently dangerous or unhealthy to warrant intervention, you will have to document the claim. Pictures are best; affidavits from a manager, vendor or other third party who has seen the problem first-hand, and certainly citations issued by local officials, can go a long way toward persuading a judge that action is necessary.
A court will also want to see that the board has tried to resolve the problem through non-judicial means. In the Tennessee case cited earlier, the association documented efforts spanning several years, including a previous clean-up, before moving to evict the owner. Courts appropriately have outsized respect for the privacy and property rights of individuals and will not tread lightly on them. Boards should proceed cautiously as well.
Don’t Do This
The board at Fountain Valley Chateau Blanc, a California homeowner’s association, would have done well to heed that advice when it ordered an owner to clean up conditions the board deemed to represent a fire hazard. The local fire department disagreed and refused to issue a citation, but the board proceeded anyway, declaring the clutter a “nuisance” and ordering the owner to discard “outdated” clothing and remove all papers, boxes and other matter surrounding his bed and dresser, except for “standard” reading material, which the board said he could keep.
The owner found the board’s order to be offensive and intrusive, and when he sued, a California Superior Court agreed. The association by-laws requiring owners to maintain their residences in clean and sanitary condition “cannot reasonably be read to allow the association to dictate the amount of clutter in which a person chooses to live,” the court fumed, noting, “one man’s old piece of junk is another man’s objet d’art. The association’s rather high-handed attempt to micro-manage 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,” the court said.
Assuming you have proceeded more carefully and more sensitively than this board, obtained a court order and arranged to have a hoarder’s unit cleaned, what do you do with the clutter removed from it? We advise erring on the side of caution, recognizing that the clutter may include possessions the owner values highly. Some of the stuffy may actually be valuable. So dispose of obvious trash — empty boxes, spoiled food, paper towels, and the like — but store the rest. Give the owner a reasonable time either to reclaim the belongings or to begin paying the storage fee. The association can add any fees it pays to the clean-up and other costs for which the owner will be responsible.
The problems posed by hoarders are complex and difficult to manage. Boards have to respond to the legitimate concerns of owners affected by the hoarding, but they have to respect the rights of owners who hoard, or are suspected of hoarding, as well. It is important to remember that hoarding is an illness, causing behavior hoarders can’t control. This doesn’t mean boards shouldn’t deal with complaints about hoarders; they have an obligation to do so. But it does mean that boards and managers should focus as much on the reality that hoarders need help as on the problems they create for the community.