Hoarding and Hoarders Must Be Handled With Care
The problems posed by community association residents who hoard are complex and difficult to manage. Boards have to balance the legitimate concerns of residents affected by hoarding, while respecting the rights of residents who hoard, or who are suspected of hoarding.
The signs and symptoms of hoarding include foul odors, insects or rodent infestation, dirty windows, dirty or continually closed curtains and blinds, window obstruction from large pieces of furniture or stacks of boxes blocking window interior views. When uncontrolled clutter spills over and compromises the rights and interests of others there is a threat to the health and safety of the community which the board is required to protect and preserve.
All associations have governing documents that prohibit residents from creating safety hazards and nuisances. Most documents require residents to maintain their homes in safe and sanitary conditions. As a result, boards can make rules that discourage residents from creating and maintaining unsafe conditions and allowing potentially hazardous situations in their homes. Having rules in place in an effort to prevent hoarding or prior to hoarding being discovered, allows associations to enforce those rules the same way they would for any other rule breaker.
Rules aimed at hoarding should be specific, with focus on unwanted actions related to health, safety, and welfare. For example, boards may prohibit storage of dangerous or flammable materials and should also require homes to be kept in clean and sanitary condition. Boards may also permit only customary outdoor furniture to be placed on balconies, decks, or patios. Finally, boards may prohibit residents from storing items in garages that would prevent them from parking their vehicles inside.
When faced with unsafe, unsanitary conditions from hoarding, boards have an obligation to address the issues. However, it is in the best interest of the association that boards remain equally focused on the fact that hoarders may need help as they are on resolving the problems hoarding creates for the community.
The most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) has been updated to include “hoarding disorder” as a diagnosis. The DSM-5 states: “hoarding disorder is characterized by the persistent difficulty discarding or parting with possessions regardless of the value others may attribute to those possessions. The behavior usually has harmful effects.” Further, it states that people who hoard “accumulate a large number of possessions that often fill up or clutter active living areas of the home or workplace to the extent that their intended use is no longer possible.”
The addition of “hoarding disorder” as a diagnosis may mean that residents who hoard may have additional legal protections as a result of “hoarding disorder” being considered to be a “disability” under the law. Both Federal (Fair Housing Amendments Act) and state law (Ohio Revised Code Chapter 4112) prohibit discrimination against persons with disabilities.
The most common type of housing discrimination occurs when an association refuses to provide a resident with a reasonable accommodation that when made, would allow the resident to use and enjoy their home. Ohio Revised Code §4112.02 (H)(19) states: “It shall be an unlawful discriminatory practice [to] refuse to make reasonable accommodations in rules, policies, practices, or services when necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling unit.”
Ohio courts have determined that this statute places the burden on the person seeking the accommodation to prove that it is reasonable. Once the accommodation is requested and it is demonstrated to be reasonable, it should not be refused. In Ohio, a tenant asked that her landlord delay her eviction to allow her additional time to clean her apartment and seek counseling for her disability. The landlord refused. The tenant sued the landlord. The court found the tenant’s request for a delay of the eviction, coupled with related follow-up for counseling to be a reasonable accommodation because it imposed no alteration of the property and created no undue financial or administrative burden on the landlord. The tenant proposed a simple and cost effective solution to the problem which resulted in the court’s willingness to give deference to the request. This rationale is likely to apply to associations finding themselves faced with requests for accommodations.
When an owner is diagnosed with “hoarding disorder” and faces legal action by an association, he/she must request an accommodation and be denied that accommodation before there is any risk of liability to the association. A resident can succeed on a claim of housing discrimination if the association denies a request for a reasonable accommodation. Discrimination occurs when a person with disabilities can demonstrate that (1) they suffer from a handicap as defined by 42 U.S.C. 3602(h); (2) the association knew or reasonably should have known of the handicap; (3) accommodation of the handicap may be necessary to afford the resident an equal opportunity to use and enjoy the home; and (4) the association refuses to make such accommodation. Manor Park Apts., LLC v. Garrison, 2005-Ohio-1891, ¶ 11.
When faced with hoarding, it will be necessary for boards to strike a balance between the competing interests of persons diagnosed with “hoarding disorder” who are entitled to use and enjoy their homes with other residents who are entitled to use and enjoy their homes in safe and sanitary conditions. Enacting rules aimed at prevention will assist residents in understanding their rights and obligations and will allow associations to take action when necessary to enforce those rules. So long as the rules are enforced uniformly, and requests for accommodations are considered made when and are determined to be reasonable, associations will substantially lower the risk of litigation and liability. If your association is faced with hoarding the rights of all owners must be considered.