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.

 

 

 

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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.

 

 

 

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