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Hoarding - Reasonable Accommodation Requirements Under Fair Housing Law

person A.J. Johnson today 09/01/2019

A "reasonable accommodation" (RA) is the request for a waiver of a policy, practice, or procedure of a housing provider in order to provide equal access and opportunity for people with disabilities. Any request for an RA must be approved as long as it is directly related to the person’s disability and does not cause an undue financial and administrative burden or fundamentally alter how a community operates.

The Reasonable Accommodation Process

Generally, managers should not initiate conversations with residents about possible accommodations - they should wait for an accommodation to be requested.

 Hoarding is different - discussions with the resident may have to be initiated because the situation is dangerous or unsanitary, and because the resident may not be aware of the problem.

Why Hoarding is a Fair Housing Issue

Since 2013, hoarding has been considered a disability. The fair housing definition of a disability is "with respect to a person, (i) a physical or mental impairment that substantially limits one or more of such person’s major life activities; (ii) a record of having such an impairment, or (iii) being regarded as having such an impairment."

Hoarding may be a mental impairment that limits a person’s ability to care for themselves (a major life activity).

Hoarding becomes a legitimate concern to housing providers when it affects the health and safety of the hoarder, other residents, staff, and/or the property.

Hoarding

According to Kenneth J. Weiss and Aneela Khan in "Hoarding, Housing, and DSM-5," (American Academy of Psychiatry Law, 2015), about 5.8% of Americans suffer from hoarding; this is 15 - 20 million people. When the American Psychiatric Association declared hoarding a clinical disability in 2013, it gave tenants with hoarding issues certain fair housing protections.

The diagnostic criteria for hoarding include:

  1. Persistent difficulty discarding or parting with possessions regardless of actual value;
  2. A perceived need to save items and distress associated with discarding them;
  3. The accumulation of possessions that congest and clutter living areas and substantially compromises their intended use; and
  4. Clinically significant distress or impairment in social, occupational or other important areas of functioning (including maintaining an environment safe for oneself and others).

Fair Housing Implications of Hoarding

Even prior to 2013, hoarding had some fair housing protection. In Douglas v. Kreigsfeld Corp., 884A. 2d 1109 (DC 2005), a court ruled that a tenant’s request for an RA plan to clean a unit due to the tenant’s mental disability and avoid eviction was reasonable.

Hoarders tend to be secretive so they rarely will request an accommodation. It is often up to management to start the process. When dealing with a resident with a hoarding problem, it is important not to use the term "hoarder" or to refer to their items as junk, trash, or clutter.

Facts About Hoarding

  1. Hoarding is the excessive accumulation of items along with the inability to discard them - even when they appear useless.
  2. Hoarding & Squalor are not the same. Squalor is defined as filthiness or degradation from neglect.
  3. Animal Hoarding involves accumulation of multiple animals. This is a very serious type of hoarding because of fecal and urine smells, sickly or diseased animals, and lack of control by the pet owner/resident. These cases should immediately be referred to animal control or the SPCA.
  4. Compulsive hoarding may be a mental disability and 92 percent of hoarders also suffer from one or more other mental health disorders, such as depression, anxiety, OCD, and social phobia.
  5. Hoarders are often unable to use their kitchens and bathrooms as intended. This is one of the clearest indicators of a hoarding problem.
  6. Hoarding creates health and safety concerns that may lead to lease violations, such as fire hazards, blocked entry/exit, trip and fall risks, infestation, non-working plumbing, and unsafe structural or sanitation systems.

Hoarding Characteristics

  1. Serious clutter or disorganization including what appears to be random piles or paths;
  2. Indecisiveness about discarding items for fear of making the "wrong" decision or not being able to see their things;
  3. Hoarders are very private and may not acknowledge that they have a problem;
  4. Hoarders are often intelligent and include people from all backgrounds and walks of life, including teachers, engineers, rocket scientists, and business owners;
  5. Hoarders are most often elderly women;
  6. Hoarders are frequently obese; and
  7. Hoarders do not create squalor and are not lazy or defiant.

Clutter vs. Hoarding

Many people live in messy homes, but the home is safe to move around in; they can straighten up enough to feel at ease having guests. Rooms are used for their intended purpose.

Housing providers must be able to distinguish between poor housekeeping and a hoarding situation. If in doubt, help should be sought from a social service or fair housing agency.

Example of Hoarding

A maintenance worker enters a unit to make a repair and finds the unit filled with so much paper and other belongings that walking through it is difficult and unsafe. The tenant is given 30-days to correct the issues but fails to do so. As a result, management begins eviction. Should the owner have taken a different approach to the problem? The answer is probably "yes."

Residents who are compulsive hoarders have the right to request a RA from housing providers - even though they may not always ask for an accommodation. This is one time when an accommodation should be offered without specifically being requested by the resident.

 If a housing provider knows (or should have known) that the resident is a hoarder with a disability, the law requires attempts to reasonably accommodate prior to eviction. However, minimum health and safety standards must be met, even if the resident who hoards requests or is offered a RA.

The RA request will sometimes be for an extension of time to bring the unit up to housing codes before the lease termination or eviction proceedings begin. It is this extra time that is the most common accommodation for hoarding.

A "Plan of Action" included in the RA offer is a useful tool for helping hold the resident accountable - and for documenting the housing providers efforts to accommodate the disabled resident.

Example of a Reasonable Accommodation for a Hoarder

If a housing provider is considering eviction of a hoarder, a "remediation plan" can be offered as a RA to preserve the tenancy. Such a plan could include support services plus an individualized schedule for clean-up and inspections.

As noted above, the most common RA for hoarding is more time for the person to obtain supportive and mental health services that would allow the tenant to bring the unit into compliance with the lease.

Collaboration between the tenant, the housing provider, mental health professionals, social workers, and/or other advocates is critical. Family members and friends may also play a role.

Tips for Working with a Resident Who Hoards

  • Early identification and intervention are key. Educate staff about hoarding.
  • Partner with code enforcement agencies and mental health providers.
  • Develop clear, mutually agreed upon goals and timeframes for meeting expectations.
  • Schedule regular inspections to monitor concerns about possible hoarding problems
  • Ask open-ended questions - mirror the language used by the resident and listen carefully.
  • Be respectful and non-judgmental.
  • Try to understand why the accumulated items are so important.
  • Helping means working with the resident and not doing the work for the resident.
  • Assist the resident in setting limits and self-monitor his/her hoarding.
  • Reach agreement on post-compliance inspections.
  • Treat residents the way you would want to be treated.
  • Do not immediately begin the eviction process.
  • Document the condition of the apartment with photos and detailed notes, noting the specific code and lease violations.
  • Involve your legal counsel - a full understanding of state and local law is essential.
  • Give the resident a chance to rectify the situation. Include timeframes in the written Plan of Action (this "Plan" is the most common accommodation).
    • The Plan should give the resident a chance to cure the problem at a pace that is conducive to long-term success.

Challenges to Working with Hoarders

Working with hoarders is one of the most difficult accommodations a housing manager may be called on to make. There are many difficult situations that will arise in this process, including:

  • No support system to assist with clean-up. Actually helping with the physical clean-up is a "slippery slope."
  • Finding help that will enable the hoarder to stick to the plan. Both psychological and physical help is necessary, but finding the physical help is often the most difficult.
  • A lot of hoarders are elderly or have physical conditions that prevent them from being able to do the work themselves. They may have no family (or unwilling family) and cannot afford to hire help. In these cases, housing providers should check with local boy scout troops, fraternities, churches, etc.

What does NOT Work When Dealing With Hoarders?

  • Ignoring the problem - it will only get worse;
  • Blaming & Shaming;
  • Avoiding the Discussion;
  • Removing clutter yourself;
  • Unsupported clean-up jobs;
  • Working in isolation; and
  • Lack of follow-up monitoring.

What If the Accommodation Plan Does Not Work?

Due to the nature of hoarding, it should be made flexible enough to deal with the inevitable set-backs. Neither state nor federal fair housing laws limit the number of times a RA may be requested, but if it is unreasonable - for the reasons previously cited - it may be denied.

Failure to comply with sanitation, building, or fire codes could be interpreted as an undue financial and administrative burden for the housing provider.

Eviction of a Hoarder

Depending on state or local law, eviction may be possible for animal hoarding, explosives, the blocking of emergency exits, or directly damaging  (and refusing to pay for) the property. It may also be possible to evict a hoarder if, after multiple attempts to accommodate the disability, nothing has worked and the resident is not cooperating with ongoing efforts to resolve the issues. In such cases, close consultation with local counsel is a must.

Conclusion

Hoarding is a disability, protected by fair housing law. As many as 20 million Americans suffer from hoarding and housing providers must be able to recognize it when they see it.

When hoarding is discovered, landlords should generally not begin immediate eviction procedures, nor should they wait for the tenant to request a reasonable accommodation. Instead, owners should enter into an interactive discussion with the resident regarding whether they will cooperate with the implementation of an Active Plan to resolve the problem.

If the resident agrees to cooperate, a written "Plan of Action" should be developed. Any plan should be flexible enough to allow for set-backs, but it should require ultimate compliance.

Ultimately, while landlords are required to offer reasonable accommodations to residents with hoarding issues, they are not required to tolerate dangerous conditions for the property, staff, or other residents. If such conditions cannot be rectified by a reasonable accommodation, removal of the resident may be the only option. But, removal of a resident with a hoarding issue should be viewed as the last option - not the first.

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