Hoarding Is A Disability: Handle Cautiously

Housing cooperatives have occasionally, like the rest of the housing industry, encountered the health and safety hazard created by hoarding. The built-in reaction has been “Clean up the mess or get out.” But, wait a moment, not so fast.

As early as 1960, an appellate court concluded that hoarding was the product of other mental disabilities. In that case, the hoarder was suffering frombi-polar disorder, post-traumatic stress disorder and a basic mood disorder. The hoarder needed to present the testimony of his psychiatrist in court to prove the disability and that the disability caused the hoarding, whereupon the court found that his condition was protected by the Fair Housing provisions of the Civil Rights Act, and he was entitled to reasonable accommodations [see Rutland Court Owners, Inc., v Taylor, District of Columbia Court of Appeals, 997 A.2d 796 (1960)]. The facts, in this case, are instructive to cooperative boards and their managing agents.

The court found that the building manager knew of the disability due to the hoarder’s low energy level, unchanged and rumpled clothes and obvious incomprehension of the problem’s magnitude, which included bed bugs. The cooperative offered an accommodation plan telling the hoarder to propose a written plan to correct the condition. The tenant did make an effort but did not submit a written plan as instructed. When the hoarder verbally requested more time, the cooperative filed suit seeking an eviction order. In court, a court-supervised plan went into effect, which after months, resulted in a corrected condition, and the suit was dismissed.

The court found that the cooperative’s refusal to grant the requested extension of time was a violation of the Fair Housing Act (FHA). Also, the court explained that “the request for accommodation need not be in any particular form.” The court noted that the objectionable condition was not finally remedied for “several months while the case was before the court.”

Based on an earlier decision [see Douglas v Kregsfeld, District of Columbia Court of Appeals, 884 A.2d 1109 (2005)] holding “no specific diagnosis” is needed to establish a disability, the court further held “little, if any, expertise was required to draw an inference between the evidence of certain mental disabilities and the effect of those disabilities on the tenant’s ability to maintain satisfactory living conditions.”

Currently, the American Psychiatric Association (APA) has concluded that hoarding is a mental disorder (see Diagnostic and Statistical

Manual on Mental Disorders (DSM-5) APA (2013). That means it is a disability. Ergo, it is covered by American with Disabilities Act (ADA). The hoarder no longer has to prove another mental disorder since the hoarding itself is a mental disorder and can become a fair housing issue if the hoarder is not given reasonable accommodation.

In the face of the hoarder not having to prove a mental disorder since the condition itself presents evidence of the disability and its cause, what can the cooperative do?

The first step is to seek a reasonable accommodation. A reasonable accommodation is a change, exception or adjustment to a rule, policy or practice or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces or to fulfill their program obligations (see Joint Statement of the Department of Housing and Urban Development and the Department of Justice Reasonable Accommodations Under the Fair Housing Act, https://www.justice.gov/crt/us-department-housing-and-urban-development). Remember, it is unlawful under the FHA to refuse to make a reasonable accommodation in rules, policies, practices or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling [see 5/ 42 U.S.C. 3604(f)(1)].

A reasonable accommodation may not be an immediate solution but a plan to be worked on over a mutually agreeable period of time. The cost of providing a reasonable accommodation will be much cheaper than having to defend against a fair housing charge in federal court or, even, before a state commission. These costs would be in addition to the usual costs of eviction, which may likely be proceeded by a contested court proceeding. The cost may include securing the advice of a mental health practitioner to find the appropriate solution or avoid any missteps. An effort should be made to identify and work with members of the hoarder’s family to achieve a positive result.

Once a reasonable accommodation has been achieved, it then should be reduced to a written agreement through which progress can be judged. This agreement will also guide the cooperative’s and the member’s conduct through success or failure. Keeping a written history of events and documented records, including evidence (photographs), is essential in event of the plan’s failure. This documentation can be evidence in both a forcible entry and detainer or dispossess court proceeding or a defense against a possible federal court or state, county or municipal charges of violations of the rights of a disabled person.

There is also a possibility the hoarding produces safety and health ordinance issues resulting in a citation against the cooperative. The hoarder could produce odor, blocked exits, an infestation of pests, paper near a source of heat and combustible material storage violations. The cooperative will have to defend against the charges. In defending against the municipal citation, it might be necessary to bring in the hoarder as a third-party defendant in the municipality’s court proceeding.

Any reasonable accommodation worked out with the hoarder would have to include, at least:

Standards or goal to be achieved;

Timeframe for progress and a final deadline;

Who will do the inspections and with what frequency?; and a

Benefit to the hoarder will be continued occupancy by compliance and an agreed order for eviction in event of failure.

The reasonable accommodation reached needs to be reduced to a signed agreement or become a court order upon the cooperative’s initiative. In light of the possibility of an ADA suit or countersuit against the cooperative, in event the cooperative files suit, it might well be a step of precaution for the cooperative’s complaint to allege that the suit is also being filed to seek a court-ordered reasonable accommodation under the ADA apart from an eviction order and use the cited court cases and others as a basis of the lower court’s authority to do so.

On the other hand, what happens when a prospective applicant has a history of hoarding as evidenced by a negative landlord reference? As hoarding is a disability under the ADA, a cooperative cannot discriminate against a prospective tenant with a history of hoarding as such discrimination is violative under the FHA. Under the FHA, it is unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of (a) that buyer or renter; (b) a person residing in or intending to reside in that dwelling after it is sold, rented or made available; (c) or any person associated with that buyer or renter. However, the applicant with a hoarding history may request a reasonable accommodation at the time of application.

In the event that the prospective applicant is approved and a situation arises where reasonable accommodation is requested or suggested due to hoarding, then the cooperative must work with the hoarder in order to achieve such reasonable accommodations. Of course, in the event that the hoarder fails to effect the reasonable accommodation, the cooperative must look to its cooperative attorney as there will need to be immediate court action as a result of the failure by the hoarder to effect the reasonable accommodations. It is vital that the cooperative adhere to the FHA and not discriminate against a prospective applicant as it cannot become a participant to discrimination in the exercise of its applicant approval power.

Cooperatives may rely on the “direct threat defense” if there is one to the health or safety of other individuals or if the tenancy would result in substantial physical damage to the property of others [see 42 U.S.C. 3604(f)(9)].

However, in the housing situation, this may be a difficult defense to prove. The occupant’s argument will rest heavily on the fact that nothing occurred in seeking reasonable accommodation to offset the owner’s argument of what could occur.

Experience in dealing with hoarders, before the conclusion that it is a mental disorder, was that it can rarely be worked out with the hoarder alone. If there is no family control over the hoarder, then it is most likely to be expected that court involvement will be needed to help effect the reasonable accommodation with the entry of an enforceable court order, which may well have to be permanent. Failure to work out such a plan, of course, would need an order giving the cooperative possession of the dwelling unit and the eviction of the hoarder and legal recovery of the hoarder’s membership or share certificate.

Finally, there is a need to first determine whether any particular hoarder’s conduct is a violation of any provisions in the occupancy agreement or proprietary lease as outlined earlier. If the hoarder is a smoker the situation is obviously made more urgent.

Additionally, cooperatives should be aware that post-traumatic stress disorder and autism spectrum disorder are also noted as psychiatric disorders and, therefore, will be considered as disabilities under the ADA.

Herbert H. Fisher is retired as an attorney after 63 years of practice, including 44 years representing housing cooperatives in the Chicago area and providing services to housing cooperatives across the nation. He was a past NAHC president and board chairman and NAHC Jerry Voorhis, Author of the Year, National Cooperative Business Association Honored Cooperator and Midwest Association of Housing Cooperative Lifetime Membership awards recipient.

 

 

Alyssa Gunsorek, Esq. is an attorney at Pentiuk, Couvreur & Kobiljak in Wyandotte, Mich.

 

 

 

Fifty-One Homeless Vets Given Cooperative Keys to a New Home & Life

In 2018, in Agawam, Mass., the last of a group of homeless veterans was handed their keys to home ownership. In total, 51 homeless veterans were not just given keys to their own housing cooperative but keys to a new life. For the first time in a long time, these veterans had a stable roof over their head and a host of supportive services to give them independence on their new journey.

When Anthony Wilson moved in that first week, he told his case manager, “Walking into my unit brought tears to my eyes. This is MY home, and no one can take that away from me.”

For Soldier On, a Northampton, Mass.-based veterans’ organization, the Gordon H. Mansfield Veterans Community in Agawam was a key chapter at the end of an almost 10-year struggle for this site to be a veterans’ community. When staff from Soldier On set its eyes on the empty former home of the Western Massachusetts Regional Police Academy, it was love at first sight. The academy with its classic architecture of white Greek columns highlighted the stately four-story building on seven acres of landscaped open space. It would surely be an uplifting palace for poverty-stricken homeless veterans.

Anthony Wilson resident poses at Soldier On in Agawam CREDIT: ANTHONY WILSON

The state of Massachusetts handed over the property to Soldier On for $1 in 2010. Massachusetts Lt. Gov. Timothy P. Murray called the act “a generational responsibility” to help the nation’s veterans. John (Jack) F. Downing, president of Soldier On, joined Murray in saying there is an obligation to help out “those who aren’t as gifted or able.” State Rep. Rosemary Sandlin, D-Agawam, who initiated the project and filed the state bill to allow for the sale, characterized the project as “a hand up, not a handout.”

Not only does the community provide veterans with housing, but it also prepares them for practical living. The veterans go through a 35-hour life skills program, involving decision making, cooking, budgeting, weight loss, anger management and coping with mental health issues. The program also offers day trips, games and art to spur personal interests such as reading groups, performing arts and museum visits, fishing and camping excursions and professional sporting events. It also encourages veterans to volunteer in the community. For example, residents partnered with the Agawam Garden Club to weed and plant along Main Street. After years of homelessness, fighting isolation is a priority objective of Soldier On said Casey DiCicco, director of communications at Soldier On. Thus, each veteran is assigned a case manager, along with peer support, transportation to appointments in the community and a meal a day that veterans can eat in the dining room or take to their apartment. In addition to regular checkups, Soldier On has supplied each apartment with a 32-inch monitor that is both a TV and an interactive computer. The monitor, set up to encourage face-to-face meetings, is tied into a Soldier On service desk where the resident veterans can get immediate help and support through Skype or text. The organization has created a $2 million-dollar call center to serve its thousands of clients including the vets at Agawam.

These units will also build community by announcing activities via calendars for Agawam and other Soldier On sites. Additionally, the veterans will be able to make appointments online with a caseworker or medical staff. Currently, residents not only Skype with their case managers, but they are able to attend groups at different campuses and Skype with their families and other residents.

The community hosts 47 one-bedroom apartments of 475 square feet each and four studios with vaulted ceilings with large windows. The common areas include two patios with gas grills, a dining area for special events and social events, a greenhouse, laundry rooms, onsite office rooms and a converted auditorium that houses two units, a library and/or meeting room.

The organizational structure of the Soldier On cooperatives is modeled on Gordon Housing for Veterans These new housing cooperatives are not the first of their kind, but there should be many more. Thompson has written elsewhere about how after World War II housing cooperatives gave a home to veterans and their families (www.thenews.coop). Former NAHC Executive Director Doug Kleine also has written about them. From 1945 on, veterans housing cooperatives helped returning veterans to rebuild their lives. In an amazing national effort, 46 housing cooperatives for veterans were built in 15 states providing 14,721 units of cooperative housing for almost 50,000 members of veteran families. Soldier On Statistics A homeless vet can cost the public nearly $80,000 each year. The annual cost of a veteran at Soldier On is $17,000. This is a savings of roughly 80 percent for taxpayers. Gordon Mansfield Gordon Mansfield, a former deputy secretary of Veterans Affairs, was a Pittsfield native and highly decorated Army veteran who survived two tours of duty in Vietnam. As company commander of the 101st Airborne Division, Mansfield sustained a spinal cord injury during the 1968 Tet Offensive for which he received the Distinguished Service Cross — the second highest personal decoration for valor in combat. Anthony Wilson resident poses at Soldier On in Agawam. CREDIT: ANTHONY WILSON 5 NATIONAL ASSOCIATION OF HOUSING COOPERATIVES Mansfield Agawam Veterans’ Village. The property is owned for the first 15 years by Agawam Veterans Village LLC, which used state and federal historic tax credits to obtain the equity financing. The limited equity cooperative is the non-profit partner in the ownership of the project. The intent is for the cooperative to have an advisory board of four to five members elected by the residents and one or two board members appointed to the board from the Agawam community. After 15 years, the board of the limited equity cooperative will assume the property from the LLC.

Homeless veterans who meet U.S. Department of Housing and Urban Development Veterans Affairs Supportive Housing (VASH) and low-income housing credit income thresholds are eligible to be cooperative members. Due to the VASH vouchers, the monthly carrying charge or rent to live at Agawam is set at one-third of their income.

Members of the cooperative have to obtain $2,500 to invest in one share. However, many of the homeless veterans are not able to raise the full amount. Fortunately, Soldier On has worked with a number of local banks and credit unions on a pool of funds. Those dollars can be donated or lent to prospective members. At the end of the year, if there are surplus funds after paying off all obligations, the cooperative issues a rebate to each member.

The Gordon H. Mansfield, Veterans’ Community in Agawam is a replication of the idea of the first limited equity cooperative that Soldier On completed nearby in Pittsfield, Mass., in 2010. The Pittsfield cooperative provides housing for 39 veterans in a community of all newly built housing.

Downing conceived and spearheaded the program for limited equity housing. Just before the dedication, Downing said, “Agawam is a community that many of our people would be comfortable living in. It offers a lot of supportive services, and this building is on rural property that allows our veterans to live together and do very, very well.”

Many groups involved in housing veterans are beginning to take a look at the veterans’ cooperative housing program at Solder On that promotes ownership and involvement.

To learn more about Soldier On, visit its web site at www.wesoldieron.org.

Read more articles like this in the current issue of CHQ


This article first appeared in Shelterforce.

David J. Thompson has visited Soldier On twice to learn about the progress of the limited equity cooperative model. He has worked on the California legislation and successful bond measure in 2014 which made $1 billion more available to house veterans in new ways. David is president of Twin Pines Cooperative Foundation and a co-principal of Neighborhood Partners, LLC. www.npllc.org

 

Government Relations is a Member Benefit that Garners Many Cooperative Achievements

Housing Cooperative Victories

Over the years NAHC has had many successful victories legislatively and in the courts. As mentioned in the Report from Washington, a disaster relief bill for the Federal Emergency Management Agency to provide eligibility for housing cooperatives and condominiums was enacted into law on October 5, 2018. The following are some of the other major victories:

Veterans Affairs (VA) Home Loan Guarantee Benefits for Housing Cooperatives

In 2006, Congress passed legislation allowing veterans to use the Veterans Affairs’ (VA) Home Loan Guaranty Program to purchase cooperative housing shares (units) using their low-interest loan benefits. These loan benefits allowed veterans to buy homes with no down payment and limited closing costs. However, the program to allow loans for cooperative housing ended at the end of 2011. In order to allow our nation’s veterans to use the VA loan for all forms of home ownership, we will be reintroducing legislation that would permanently offer this benefit to housing cooperators. To ensure that veterans are aware they can use the loans for cooperative housing shares (units), we are adding a provision so that the secretary of the VA can advertise the program to eligible veterans, participating lenders, and interested realtors.

HUD Assistant for Cooperative Housing

Legislation enacted to create the position of
senior adviser and special assistant for cooperative housing at the Department of Housing and
Urban Development (HUD) resulted in the 2003 appointment of a point person for cooperative housing issues and policies reporting to the federal housing commissioner. Congress created the special assistant for cooperative housing role so that an appointee reporting directly to the Federal Housing Commissioner could focus on the critical issues facing cooperative housing.

Housing Cooperatives and Subchapter T of the Internal Revenue Code (IRC)

In 1999, after a long and difficult challenge, the Internal Revenue Service (IRS) finally agreed to
no longer apply Section 277 of the IRC to housing cooperatives and found that housing cooperatives correctly belong under Subchapter T of the tax code.

Section 277 applies to membership organizations such as country clubs but never should have been applied to housing cooperatives. Interest income on reserve funds and revenue from parking facilities for the use of residents in the building should not be subject to taxation under Section 277 because housing cooperatives have no “net” income when the expenses of operating the cooperative are taken into account.

A cooperative action fund was created to help pay for expenses involved in the fight. NAHC waged an intense battle in Congress to gain support for bills to remedy the problem. Housing cooperators from all over the country contacted their members of Congress resulting in legislation in the House of Representatives and the Senate

to stop the IRS from applying Section 277 to housing cooperatives. One senator even told NAHC he would definitely introduce legislation because they received so many calls on this issue that they were unable to use their phones.

The ultimate victory on Section 277 occurred
in the courts after the 1998 successful decision in the Rutherford Tenants case brought to a successful close a long campaign waged in the courts and in Congress to establish that housing cooperatives are not subject to Section 277 of the IRC.

Looking Forward

NAHC’s success depends on its members. NAHC needs members to respond to NAHC’s “Calls to Action” and to stay informed about the issues. Remember, everyone in Washington wears a hat representing the issues they support. Wear your cooperative hat.

NAHC Board Member Addresses College Students on Housing Cooperatives

IN NOVEMBER, NAHC board secretary Karen Harvey spoke with diverse attendees at the North American Students of Cooperation (NASCO) Institute’s 2018 Annual Conference and forged connections to educate and encourage participants to take advantage of NAHC’s resources.

Leadership at this year’s Ann Arbor, Mich., conference encouraged attendees to try new things, expand their cooperative skills toolboxes, make lasting connections with fellow co-operators and use the conference theme, “A Legacy of Cooperation” to explore ways that cooperatives are connected to a resilient global movement.

Conference attendees followed a set of agreements as ground rules throughout the institute. The framing and language for these community agreements were created in partnership with Anti-Oppression Resource and Training Alliances (AORTA) and borrowed from various people’s movements for justice. To learn more, access AORTA’s website at www.aorta.coop. Here are a few with a short explanation which would be useful for many business meetings and conferences:

  • One Diva: One Mic. In both large and small groups, one person speaks at a time.

  • No one knows everything; together we know a lot. Practice being humble because we all have something to learn from everyone in the room.

  • What’s said here stays here; what’s learned here leaves here. Respect confidentiality. Keep personal stories confidential but share what you learn.

 

The keynote speaker, Esteban Kelly, was interesting and enlightening. NASCO inducted Kelly into its Cooperative Hall of Fame in 2011.

NASCO offered the usual cooperative course tracks, such as Staff and Management, Building Cooperative Skills and Creating New Cooperatives, along with other tracks such as Anti-oppression, and Connection to the Cooperative Movement. Their caucuses provide opportunities for participants with shared identities to raise issues, build connections, and organize for change. The caucus groups are:

 

  • Women’s Caucus

  • People with Disabilities Caucus

  • Queer and Trans Caucus

  • Working Class Caucus

  • People of Color Caucus

NASCO encourages the importance of NAHC networking with millennials for there is much each group can learn from the other to ensure the future of cooperatives.

2019 Cooperative Hall of Fame Inductees Announced

Four outstanding cooperative leaders will receive the cooperative community’s most prestigious honor on May 8, 2019, when they are inducted into the Cooperative Hall of Fame at the National Press Club in Washington, D.C.

The inductees are: Terry Appleby, retired General Manager of Hanover Consumer Cooperative Society; Richard L. Ensweiler, retired president and CEO of Cornerstone Credit Union League; Anne Reynolds, former Executive Director of the University

of Wisconsin-Madison’s Center for Cooperatives; and Richard Stammer, retired president and CEO of Agri-Mark Inc. and Cabot Creamery Cooperative.

Under Appleby’s leadership, Hanover Consumer Cooperative Society quadrupled its store locations and created hundreds
of jobs, grossing more than $75 million in annual sales and transforming the regional food economy. Hanover sells $13 million dollars of local and regional products. Appleby also helped form National Co+op Grocers that represents close to 150 cooperatives operating in 37 states with combined annual sales of more than $2.1 billion.

In 2013, Ensweiler led an effort to merge the Texas Credit Union League with the Credit Union Association of Oklahoma and the Arkansas Credit Union League, forming Cornerstone Credit Union League. He helped build Credit Union House, a facility cooperatively funded by each of the 38 state credit union leagues. At Texas Credit Union League, Ensweiler created Juntos Avanzamos (“Together We Advance”), an outreach program focused on serving Texas’ Hispanic population.

Reynolds, who overhauled the university’s course on cooperatives, is the force behind the Madison Cooperative Development Coalition, community-based organizations, unions, and cooperatives. The group is currently implementing a $3.2 million City of Madison program that creates jobs and increases equity by developing unionized worker cooperatives. Reynolds also continues to develop and direct workshops on strategic planning and board training and business feasibility with groups like Cooperative Network and CooperationWorks!

Stammer helped New England dairy cooperatives sidestep bankruptcy with a merger with Agri-Mark, a cooperative of dairy farmers, and Cabot, a creamery cooperative that today generates sales approaching $1 billion and helped shape public policies
to protect the economic interests of the nation’s dairy farmers.
In 2014, Cabot received the U.S. Dairy Sustainability Award for Outstanding Dairy Processing and Manufacturing Sustainability.