How to Comply with Fair Housing Law When Dealing with a Hoarding Problem

This month, we're going to discuss the fair housing implications of a significant problem: hoarding. Many of us collect or keep objects—perhaps more than we should—because they have sentimental value or we may “need them someday.” But compulsive hoarding is more than simply having too much clutter.

At some point, it's likely that your community will be confronted with a hoarding problem. Reality TV has raised awareness of the problem, but the numbers are staggering: Estimates vary, but some mental health experts say that approximately 5 percent—or nearly 15 million Americans—suffer from this mental health problem.

For multifamily communities, hoarding can pose serious health and safety problems—not only in the affected unit, but also to neighboring units and the community at large. Potential problems include noxious odors, pest infestation, mold growth, increased risk of injury or disease, fire hazards, and even structural damage.

And because compulsive hoarders are often socially isolated, it can be difficult to detect. By the time it's discovered, the problem may be so out of hand that your first impulse is to jump in and fix the problem by requiring the resident to clean up or move out.

But what seems like a simple problem with a simple solution is far more complicated. For one thing, it's not a simple problem: Mental health experts disagree about the causes of extreme hoarding and have achieved limited success in treatment—often because a symptom of the disorder is that the hoarder simply doesn't recognize that his living situation is a problem.

Furthermore, there's no simple solution. Despite the debate about the causes and treatment for hoarding, mental health experts warn that simply cleaning out the place—without the hoarder's participation or against his wishes—is the wrong thing to do. While it offers a short-term solution, it can make matters worse in the long run.

Moreover, such a course of action is likely to land you in fair housing trouble. In most cases, a resident engaged in hoarding behavior qualifies as an individual with a disability under fair housing law, triggering your responsibility to try to work out a reasonable accommodation to allow him to continue to live there. There are limits to your obligations toward the resident, but you'll have to tread carefully—and document your efforts to work out a resolution—to prevent or defend yourself against a potential fair housing complaint.

In this issue, we'll explain how fair housing law may protect residents engaged in hoarding, as well as the limits to those protections. Then, we'll offer seven rules to help you comply with fair housing law when dealing with a hoarding problem. Finally, you can take the Coach's Quiz to see how much you have learned.

WHAT DOES THE LAW SAY?

Under the Fair Housing Act (FHA), it's unlawful to exclude or otherwise discriminate against applicants and residents because of their disability—or the disability of anyone associated with them.

Depending on the circumstances, residents engaged in hoarding behavior are likely to qualify under the FHA's disability provisions. Under the FHA, a disability generally means a physical or mental impairment that substantially limits one or more major life activities. Examples of major life activities are caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Furthermore, the law applies to individuals who have a disability, as well as those who are “regarded as” or have a “record of” having a disability—even though they may not in fact have a qualifying disability under fair housing law.

Mental health experts define clinical hoarding as:

• The acquisition of, and failure to discard, a large number of possessions that appear to be useless or of limited value;

• Living spaces that are cluttered enough that they can't be used for the activities for which they were designed; and

• Significant distress or impairment in functioning caused by the hoarding.

The underlying causes of clinical hoarding are many and varied—and often poorly understood. Most often, hoarding involves a mental impairment—such as obsessive-compulsive disorder, anxiety disorder, or chronic depression. But it may be the result of a physical impairment—such as a brain injury or disease. Indeed, some cases of compulsive hoarding seem to be related to the aging process: Mental health experts have coined the term, “Diogenes Syndrome,” to describe the stereotypical reclusive elderly person living in domestic squalor, often amid excessive clutter.

In some cases, medical experts are unable to pinpoint a physical or mental impairment to account for clinical hoarding. For that reason, some mental health experts are advocating the inclusion of clinical hoarding as a separate impairment in the diagnostic manual used by mental health professionals, although others are urging the need for further research before taking that step.

In the context of fair housing, it's important to remember that the FHA's definition of “disability” encompasses a broad array of conditions—both physical and mental—that can account for hoarding behavior. And in some cases, hoarders may qualify under the FHA's disability provisions because they're regarded as having a disability.

Hoarding and reasonable accommodations. Fair housing law offers an array of protections to an individual with a disability—chief among them is the right to a reasonable accommodation. Under the FHA, housing providers are required to alter their rules, policies, practices, or services when necessary to afford a person with a disability an equal opportunity to use and enjoy her housing.

In hoarding cases, for example, the community may be asked to hold off on eviction proceedings to allow enough time for the resident to clean the place out. Assuming it is safe to do so, the community may have to grant the request—made by or on behalf of the resident—because there's an identifiable relationship between the requested accommodation and the resident's disability.

Example: Last year, a court ruled that a District of Columbia cooperative community violated the FHA by failing to accommodate a resident who had severe mental disorders. Based on reports of bedbugs in the building, including in the resident's unit, the community hired exterminators to inspect and treat the infestation. The resident allowed an inspection, but limited access by the exterminators. Upon visiting the unit, property managers and his caseworkers found the unit to be extremely cluttered with books and papers stacked floor to ceiling, unsanitary conditions, and a serious infestation of cockroaches and bedbugs. The board revoked his shares, despite the resident's efforts to clean and treat the pest infestation, and sued to recover possession of the unit.

The court granted the resident's request for more time to correct problems in the unit, noting that he had already taken steps to eliminate the bedbugs and to clean his unit by throwing out “hundreds of pounds” of books and clothing. Nevertheless, the court found that he was in denial about the severity of the infestation and the need to temporarily vacate the unit for satisfactory extermination to take place. With court oversight, the cleaning and extermination were completed, and the resident was allowed to move back in a few months later.

The court went on to rule that the co-op violated fair housing law by revoking the resident's shares despite knowledge of his disability and his need for an accommodation of more time and professional assistance to clean and exterminate the unit. Despite its frustration with his resistance, the court ruled that the board engaged in a discriminatory act by not making a more concerted effort to provide the reasonable accommodation before revoking his shares and suing for possession [Rutland Court Owners, Inc. v. Taylor, July 2010].

Even if a resident qualifies under the disability provisions, a community isn't required to grant an accommodation request if it's unreasonable, which means that it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations.

Furthermore, the FHA doesn't protect an individual with a disability whose tenancy poses a direct threat to the health or safety of others or substantial physical damage to the property of others, unless the threat may be eliminated or significantly reduced by a reasonable accommodation. If the hoarder fails or refuses to clean the unit, despite your best efforts to accommodate her requests for more time, then you have a right to protect the health and safety of other residents as well as avoid further property damage to the unit and surrounding areas.

7 RULES FOR COMPLYING WITH FAIR HOUSING LAW WHEN DEALING WITH A HOARDING PROBLEM

Rule #1: Stay Alert for Hints of Hoarding Problems

Train your staff to be vigilant for any signs of hoarding behavior by your residents. Hoarders rarely come forward on their own, partly because the nature of the illness prevents them from seeing that their behavior or living conditions are a problem. They tend to be socially isolated—or simply embarrassed about their living situation—so it's difficult to identify the early symptoms of hoarding.

Since hoarding problems usually don't surface until the effects seep outside the hoarders' units—and into hallways or neighboring units—the observations of staff members are crucial to detect hoarding problems. During their routine duties, your leasing, maintenance, housekeeping, or security staff may notice excess clutter or noxious odors in hallways and common areas that seem to be emanating from a particular unit. Train your staff to report such problems immediately, so that you'll be able to address the issue at the earliest stage possible.

For the same reason, pay attention to similar complaints from neighbors, particularly when they're localized next door or on the floors above and below a particular unit. Hoarding isn't limited to common possessions, such as clothing, newspapers, or plastic bags; some people hoard garbage and rotting food—even animals or human waste products. Any and all can lead to serious health and safety problems involving fire hazards, impaired air quality, mold growth, pest infestation, and structural damage, which can spread rapidly and lead to serious injury or disease without prompt attention.

Rule #2: Don't Put Off Looking into Suspected Hoarding

Some property managers may be reluctant to get involved with residents who begin hoarding. While there seems to be a simple solution to remove what appears to be junk, those with clinical hoarding problems experience extreme distress at the prospect of losing their treasured possessions. It can be frustrating and time consuming to work with residents who don't see their hoarding as a problem and ignore or resist any attempts to interfere with their behavior or possessions.

Nevertheless, hoarding problems only get worse if left unattended. Public safety officials from Edmons, Wash., list these potential hazards for the hoarder, household members, neighbors, and the community:

Increased risk of fire. The accumulation of combustible materials, such as newspapers, clothing, and refuse, can pose a severe fire hazard.

• The amount of combustible materials, when ignited, creates an extremely hot, fast-spreading fire that's difficult to suppress.

• Escaping the unit in a fire may be impossible due to blocked hallways, doorways, and windows.

• Access to the unit by public safety personnel can be hampered or blocked.

Increased risk of structural damage. The volume of hoarded items, often stacked from floor to ceiling, can impose structural loads up to 500 percent above the minimum design load. It can cause permanent structural damage, including:

• Sagging floors and ceilings;

• Cracked floor joists or roof trusses;

• Compromised bearing walls; and

• In extreme cases, partial collapse of the structure.

Increased risk of disease, injury, and infestation. The storage of hoarded items makes cleaning nearly impossible, which can lead to unsanitary living conditions and increases the risk of disease.

• The lack of regular maintenance can result in the loss of running water, heat, or refrigeration;

• Toilets and sinks may be unusable or inaccessible;

• Stacked items are a falling or tripping hazard, which can cause injury to the occupants or public safety personnel; and

• Accumulated garbage can lead to rat and insect infestation.

In particular, bedbug infestation has become a serious problem in housing across the country, leading HUD to issue guidelines for federally assisted multifamily housing communities in August 2011. HUD reports that bedbug populations have increased dramatically in recent years, leading federal health and safety experts to consider them a pest of public health importance. Although the insects aren't known to transmit disease, their presence can cause health concerns, including physical discomfort, stress, and anxiety on the part of residents. Excess clutter can give them more places to hide, making early detection and targeted control difficult. And since low-level infestations may be hard to detect, the problem can quickly spread to units on either side and above and below an affected unit.

Rule #3: Investigate Potential Hoarding Problems

As soon as potential hoarding problems come to your attention, inspect common areas and inside units of residents who have lodged complaints. Make an effort to determine whether they all seem to be pointing to a particular unit.

The next step is to contact the resident whose unit appears to be the source of the problem. Your right to enter and inspect a resident's unit depends on a variety of factors, including the seriousness of the reported problem, state and local sanitary codes and landlord-tenant laws, the provisions of the lease, and other legal requirements.

In general, owners and property managers generally may enter the units of residents only with reasonable advance notice and during normal business hours, except in cases of emergency. Be sure to document that you've complied with applicable requirements—which will be particularly important if the resident in fact has a hoarding problem and denies you entry.

Once inside, document the conditions, particularly any violations of lease provisions and applicable health and safety codes. Make notes about the nature and cause of any noxious smells, pest infestations, and other problems that have spread outside the unit. And take pictures since descriptions of hoarding conditions can go only so far to show the seriousness of a hoarding problem.

Whatever you find inside the unit, be sure to treat the resident with dignity and respect. That may be challenging if confronted with the telltale signs of hoarding—an accumulation of large amounts of papers, bags, blocked exits, rotting food, signs of rodent or pest infestation, or human or animal waste. Unless you maintain a neutral, nonjudgmental demeanor, you could inadvertently make matters worse by exacerbating the hoarder's distrust and resistance to change.

COACH'S TIP: During inspections and maintenance of units that you suspect may be occupied by a hoarder, consider filling out a Model Form: Use Form to Determine Whether Resident's Clutter Is a Safety Risk, published in the February 2010 issue of our sister publication, Tax Credit Housing Management Insider, available at www.taxcredithousing.com.

Rule #4: Listen for Reasonable Accommodation Requests

When an inspection reveals signs of hoarding, follow your standard policies and procedures for addressing safety and health problems. Comply with notice requirements dictated by the lease and applicable law if conditions inside the unit are bad enough to pursue eviction proceedings.

Nevertheless, fair housing laws may require you to try to work out a reasonable accommodation to allow the resident to clean out the unit in order to preserve her residency. Obvious signs of unsafe and unsanitary hoarding may be bad enough to suggest that the resident has some type of disability. Or you may have prior knowledge that the resident has a disability because she pays her rent from Social Security disability benefits or some other type of disability-related assistance.

Either way, listen for reasonable accommodation requests, which may be framed as something the resident “needs” or “wants” because of a disability. In hoarding cases, it's usually a request from the resident or a family member to delay legal action against the resident to give him more time to clean out the unit.

In most cases, that's enough to qualify as a reasonable accommodation request since the FHA doesn't require that the request be made in a particular manner or at a particular time. According to federal guidelines, a resident or applicant makes a reasonable accommodation request whenever he makes it clear to the housing provider that he's requesting an exception, change, or adjustment to a rule, policy, or practice because of a disability. In addition, the request need not come directly from the person with the disability; the request may be made by a family member or someone acting on his behalf.

Rule #5: Promptly Respond to Reasonable Accommodation Requests

Follow your community's policies and procedures regarding reasonable accommodations if a resident or someone on his behalf asks for extra time to address hoarding problems within a unit.

Depending on the health and safety risks involved, you may not have to grant the request—but you do have to take it seriously by responding formally and promptly. Under HUD guidelines, an undue delay in responding to a request may be deemed a failure to provide a reasonable accommodation.

Moreover, don't ignore a request simply because you don't believe the resident has a disability-related need for more time to clean up the unit. Subject to strict guidelines, the FHA allows communities to seek additional information to evaluate an accommodation request if the request comes from a resident whose disability isn't obvious or the need for the accommodation isn't readily apparent.

Example: In 2009, a Pennsylvania court overturned a judgment in favor of a public housing community and ordered further proceedings on a resident's request for more time to clean out her unit as a reasonable accommodation for her disability.

Allegedly, housekeeping problems surfaced after the resident's husband died from cancer. In the two years following his death, the community unsuccessfully attempted to help the resident remedy the problems. In anticipation of an upcoming inspection, the resident became distraught and was hospitalized for a psychiatric condition. After her release, the inspection revealed fire hazards related to poor housekeeping. At an informal meeting, the resident said she was “progressing in her depression,” and the community agreed to reinspect the unit a month later. Despite some progress in cleaning the unit, the resident failed the second inspection.

During eviction proceedings, the resident for the first time asked for more time to address housekeeping problems, but the community allegedly refused to consider offers for documentation related to her depression. The court ordered her eviction.

On appeal, the court ruled that the resident proved that she had depression, which was a disability under the FHA, and that the community knew or should have known that she had disability—even before filing the eviction proceedings. The court also ruled that she requested a reasonable accommodation and that the community refused her request. Nevertheless, the case was sent back to determine whether she was unable to maintain her unit as required by the lease because of her disability [Lebanon County Housing Authority v. Landeck, February 2009].

Rule #6: Engage in an Interactive Process to Resolve Hoarding Problems

Even when a resident qualifies as an individual with a disability, a request for an extended period to clean the unit may be unreasonable if conditions inside pose immediate or serious health and safety risks.

Fair housing law doesn't require communities to grant accommodation requests that are unreasonable. Allowing sanitary code violations to continue for an extended period, for example, could pose safety risks to other residents or expose your community to potential liability, fines, or other undue financial and administrative burdens.

Nevertheless, tread carefully before rejecting a requested accommodation on the grounds that it's unreasonable. HUD says you should discuss with the resident whether there's an alternative accommodation that would effectively address his disability- related needs.

For example, you may work out a plan with time frames for resolving lease violations, but you may have to be flexible if the resident fails to shed enough clutter to remedy valid safety and health concerns. It may take multiple attempts, extended deadlines, or outside help to alleviate problems inside the unit. And you may have to be satisfied with less than “broom clean” conditions—if the resident remedies health and safety problems, it may be unreasonable to impose overly stringent standards.

To keep things on track, the plan should allow for periodic inspections—as often as once a month, if warranted. Hoarding is notoriously difficult to treat, and recurrences are common—so frequent inspections may help ward off future problems. The agreement should also spell out consequences for failing to maintain the unit as agreed—for example, by giving you the right to reinstate eviction proceedings if the resident fails to maintain the premises.

Rule #7: Proceed with Eviction if Interactive Process Fails

If the resident ignores warnings about lease violations or otherwise fails to abide by any informal efforts to resolve hoarding problems, you can initiate proceedings to recover possession of the unit. Be sure to document your compliance with notice provisions and other legal requirements imposed by state and local law. It's also important to have documentation of the condition of the premises, including pictures, descriptions, and witness testimony.

Even after legal proceedings have begun, however, you should be prepared for an 11th-hour request to delay eviction proceedings to allow the resident more time to clean up the unit. Because hoarders are resistant to parting with their possessions, it often takes official legal proceedings that threaten their continued residency to prompt them to do something to remedy the problem. Nevertheless, there are limits on your obligation to accommodate residents whose hoarding behavior poses ongoing safety and health hazards to other residents.

Example: Last year, a New York court permitted the ouster of a 40-year resident of a rent-stabilized co-op unit because deplorable conditions existing for many years remained a nuisance. Witnesses testified about cluttered and dirty conditions, including debris and dirty dishes piled one- to three-feet high; obstruction of the master bedroom; infestation of vermin, spiders, and rodents; and foul odors that extended into the common hallway. The resident, an attorney, admitted the unit was messy, but insisted that he cured any defects by cleaning the unit—although witnesses said it didn't look any different after the clean-up.

Upon invitation by the resident, the court conducted a surprise inspection. Although the one- to three-foot piles of clutter were gone and there was no evidence of vermin or rodents, the court observed that the filth in the unit was everywhere and extreme. Because his ongoing pattern of objectionable conduct created a nuisance for his neighbors, the court ruled that he wasn't entitled to any further opportunity to cure the nuisance. The ruling was upheld on appeal [Cabrini Terrace Joint Venture v. O'Brien, March 2010].

The same may hold true even if a resident qualifies as an individual with a disability. The FHA doesn't offer protection to a resident with a disability whose tenancy amounts to a “direct threat” to the health or safety of other individuals or would result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation, according to HUD.

To determine whether a resident with a hoarding problem poses a direct threat, the community must make an individualized assessment—based on reliable, objective evidence, such as current conduct or recent history of overt acts. HUD says that the assessment must consider:

• The nature, duration, and severity of the risk of injury;

• The probability that injury will occur; and

• Whether there are reasonable accommodations that will eliminate the direct threat.

Because of these and other requirements, it's best to get legal advice when you believe a resident's hoarding poses a direct threat to your property or the health and safety of other residents.

• Fair Housing Act: 42 USC § 3601 et seq.

• HUD guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf

COACH Source

F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 South Plymouth Ct., Ste. CBA-800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu.