In your community association, there will be a marked increase in the number of aging residents. Unfortunately, this means an increasing number of aging residents may struggle to take care of themselves and their property.
This struggle may pose a threat to the aging residents themselves and/or the community and its property. While the association may not want to get involved with the personal affairs of its members, ignoring the issues may result in tragedy.
Consider an elderly resident who repeatedly leaves the water on and floods three other units. What if an elderly couple repeatedly leaves a pot of boiling water on the stove that finally catches fire? What does a board member do when the phone rings because an elderly resident is disturbing the neighbors’ peace? Think of the claims the association might face under these circumstances:
- Elderly residents with special needs have a right to fully enjoy their units.
- They also have a right to privacy.
- It is the association’s duty to ensure the health and safety of all residents once it knows of a potential problem.
- The association must protect residents’ right to the “quiet enjoyment” of their units.
- The association must protect its property.
- Association board members are part of a community of neighbors and friends who may want to provide personal assistance such as driving, repairing, helping with medicine, etc.
- Association board members are also directors and officers of a corporation.
Having a plan and procedures in place to follow when situations like this arise will remove emotional guesswork and reduce the potential for liability and harm.
While putting a plan in place sounds simple enough, the association will have to create a fair and balanced plan that reflects its duties under the law and within its governing documents.
Know the Law
Both federal and state laws set boundaries that must be kept in mind when dealing with elderly, disabled residents. The Federal Fair Housing Act and the Ohio Civil Rights Act prohibit discrimination against individuals with physical and/or mental disabilities. Each law may require the association to permit special accommodations for those individuals.
The Fair Housing Act and Ohio Civil Rights Act require associations to permit “reasonable accommodations” to the rules, practices, policies or services when necessary to provide residents with disabilities “an equal opportunity to use and enjoy a dwelling.” Classic examples include permitting a seeing-eye dog to live with a resident, permitting a disabled resident to construct a wheelchair ramp or to use a parking spot closer to the resident’s home.
Unfortunately, it is unlikely the association will be faced with a situation that is so clear it will know exactly how to balance the competing rights of the individual with the rights and duties of the association. The law anticipates this problem. The law looks for the existence of a process in which the parties work together to solve problems and arrive at mutual decisions and solutions.
Ohio’s Condominium Act also contains provisions that may be helpful to an association faced with a dangerous situation resulting from a resident unable to care for him/herself and the home. R.C. Section 5311.03(F) allows the association access to a home for the purpose of maintaining, repairing, or servicing any common element within the home’s boundaries to prevent danger. R.C. Section 5311.081(16) permits entry to a home when “conditions exist that involve imminent risk or damage or harm to common elements, another home, or to the health or safety of the occupants of that home or another home.”
Moreover, if the board deems it necessary that work be performed on an individual home because it is necessary “for public safety or to prevent damage to or destruction of any other part of the condominium property,” it may perform the work. Under the law, the board would be entitled to place a lien on the home to secure payment for the work performed.
On the other hand, Ohio’s Condominium Act also states the board “may allow a reasonable time to cure violations” of the Declaration, Bylaws, and rules of the association. Again, the competing interests of the resident and the association must be balanced and fair solutions reached.
Know the Facts (and put them in writing!)
Whenever there are complaints or concerns from any resident regarding an elderly resident, instruct the complainant to: “Put it in writing.” Also, be sure to include any discussion of the issue in meeting minutes. This way, when the board acts, there is a recorded history existing to explain why the action was necessary.
Know the Plan
The association’s plan of action should contain these 4 steps:
- Communicate in writing with the resident. The association must communicate with the elderly resident, in writing, any time there is a concern for the individual’s safety, the safety of any other resident or property. Use a gentle tone. Describe in factual detail the behavior the association sees as threatening. Describe how the behavior poses a threat to the resident’s personal health, safety, and welfare and/or property, as well as that of other residents and the community.
- Communicate with the family. When there is no change in the situation or no response to the letter, contact the resident’s family. Communicate in writing. Again, use a gentle tone and be fact-specific. Generally, elderly residents’ relatives will step in to ensure proper care for the resident and relieve the association of the responsibility.
- Contact support services for the elderly. When family members fail to act, the association should seek help from social service agencies. The city, county, and state all have agencies equipped for dealing with the elderly. It is best to start locally and work from there. Often, local agencies provide services directly to elderly residents. If and when they do not, they will refer the association to an agency that will.
- Private agencies can also help. Though private agencies are often affiliated with religious organizations, they are often funded by the government and will provide services to any elderly person in need.
To find an agency in your area, you may call Eldercare Locator at 1-800-677-1116. This number is a service of the National Association of Area Agencies on Aging.
File a Court Action
This step is the last resort. When each of the processes above fail and no person or agency is able to help, there are solutions courts can offer under local and state law. One solution is having a guardian appointed to manage the physical and financial affairs of the resident. In addition, a court can order a person or anything posing a danger be removed from the residence.
In Massachusetts, a court ordered locks to be put on a stove and oven to prevent an elderly couple from using them. Further, the court ordered the couple to hire a caretaker who would have a key to the stove to come in and prepare meals for them. In Florida, a judge simply ordered the stove be removed from the home altogether.
Fortunately, few situations will require such extreme measures. When necessary, however, the courts are available to help.
Know You Are Neighbors
Realizing you are neighbors is important when the association is faced with what may be an emotionally charged situation. Keep this in mind before you act and when following your plan of action.
Statistics show that associations will be dealing with an ever-increasing aged population. Associations must be prepared for the challenges this population brings. As with anything else, knowledge and a plan of action will limit liability and strengthen the association’s confidence to deal with difficult issues.