A. J. Johnson Consulting Services, Inc.

In 2013, the American Psychiatric Association (APA) declared hoarding to be a clinical disability, automatically putting the issue of hoarding front and center with housing operators. The Fair Housing Act (FHA) bans discrimination against individuals with disabilities. The FHA defines disability as any physical or mental impairment that substantially affects one or more major life activities.

Hoarding is more than simply having too much clutter. It is characterized by the accumulation of items that are generally viewed as having no value, and the inability to discard those items. The most telling characteristic of hoarding is that it creates a situation in which the home cannot be used for its intended purpose.

According to the APA’s Diagnostic Statistical Manual V (DSM-5), hoarding causes major distress or problems in social, work, or other important areas of functioning (including maintaining a safe environment for self and others). Many people with hoarding disorder also experience other mental disorders, including depression, anxiety disorders, attention-deficit/hyperactivity disorder, or alcohol use disorder.

Professional owners and property managers know the rights of the disabled, especially those rights relating to the requirement that when reasonable to do so, owners are required to accommodate the needs of a disabled person when such accommodation is necessary to afford the person equal use and enjoyment of a property. In most cases, owners are not required to offer accommodations (i.e., changes in policy or practices) unless requested by a disabled person or a person requesting on behalf of a disabled person. Within the context of housing, hoarding is one type of disability where a housing operator may have to offer accommodation without one being requested.

All housing owners and managers should have an established plan relating to dealing with hoarding issues. There are a number of elements that will be present in any good "hoarding plan."

Train Staff to Detect Signs of Hoarding

The goal is to catch hoarding before it seeps out of the unit and affects other residents or common areas. This can usually only be done through visual observation, either by staff or other residents. It may also be detected by the presence of noxious odors in hallways and other common areas. Staff should be trained to immediately report these issues.

Hoarding is not limited to common possessions, such as clothing, newspapers, or plastic bags; some people hoard garbage and rotting food - even animals or human waste products.

Investigate Potential Hoarding Immediately

When the issue is discovered due to odors, a determination of the source is required. Once that determination is made, the resident whose unit appears to be the source of the problem should be contacted. Follow state and local law with regard to a landlord’s right to inspect the unit, but such inspection is a necessity.

Once inside, document the conditions, focusing on 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. Unless prohibited by state or local law, photos should be taken. Descriptions of hoarding conditions may not adequately describe the problem. However, if the resident is adamant about not having photos taken, it is best not to force the issue. Ultimately, the resident’s cooperation will be required in resolving the problem.

Stay neutral and nonjudgmental in dealing with the resident. Do not take matters into your own hands to clear away the resident’s possessions. That approach will backfire more often than not - especially if the resident has not asked for your assistance. Even if the resident does request your assistance in the cleaning process, it is best not to agree. This sets a bad precedent for what you will do for residents and may create liability if the resident accuses the staff of theft or damage to personal property.

Be Alert for Reasonable Accommodation Needs

If the condition of the unit violates the lease - which it almost certainly will - it is best not to follow standard lease violation procedures with regard to the hoarding problem. This is the one time when it is recommended that housing operators initiate the reasonable accommodation process, without waiting for a specific request. If a hoarding problem is indicated, the resident almost certainly has a recognized mental impairment and is therefore disabled. In these cases, fair housing law may require the granting of a reasonable accommodation that would give the resident time to restore the unit to an acceptable standard. It is "time" that is the accommodation.

Residents with hoarding problems will almost never specifically ask for an accommodation. While such a request may come from a family member or advocate, it may not come at all. In these cases, it is recommended that the housing provider offer additional time if the resident is willing to cooperate in the preparation of a plan that will improve the condition of the unit. This type of communication should come from the corporate office of the housing owner - not the site staff. It may even be best if it comes from the attorney for the housing provider.

Determine the Accommodations that will Correct the Situation

Following are examples of the types of accommodations that could be offered:

Meeting with the resident to identify health and safety issues that need to be addressed;
Establishing goals and timelines with the resident to address the health and safety issues;
Setting periodic dates for follow up visits;
Setting forth the goals, timelines, and re-inspection requirements in a written agreement that the resident signs;
Providing the resident with a list of community resources that can assist persons with hoarding issues;
Working with a fair housing and/or mental health advocacy group or attorney assisting the resident to develop a plan to bring the unit into compliance; and
Extending the time for compliance with a legal notice that has been served or entering into a stipulation agreement in an eviction that gives the resident a final opportunity to address the health and safety issues and preserve their tenancy.

The priority should be solving legitimate health and safety issues rather than trying to achieve ideal housekeeping practices. Residents with hoarding issues may not realize they have a problem - of the severity of the problem - or be equipped to resolve the problem on their own. Also, hoarding has a high rate of recidivism, so any written agreement made with the resident should include language that provides for periodic unit check-ins to monitor ongoing compliance after the health and safety issues have been remedied and a specific time period for correction of any future health and safety issues.

An "Interactive Process" is Required

There may be times when granting additional time to clean a unit may not be reasonable. If the condition of the unit poses an immediate risk to the health and safety of other residents or to the building itself, giving additional time may not be reasonable. Accommodation may not be required, and termination of the tenancy may be the best approach, if:

The condition of the unit is a clear, direct, and immediate threat to the health and safety of other residents or the property and there is no accommodation that will eliminate or sufficiently mitigate the health and safety issues;
There are serious health and safety issues that cannot be resolved through accommodation;
The resident has caused serious monetary damage to the unit and refuses to reimburse the landlord for the cost of the damage; or
The resident will not engage in the accommodation process or cooperate in bringing the unit back into compliance.

However, whenever an accommodation request is denied, owners and managers should enter into an interactive process with the resident to determine if there is an alternative accommodation that may work for both the resident and the property. It is also important to be flexible in terms of timing - especially if the resident exhibits some degree of cooperation. It may take multiple attempts, extended deadlines, or outside help to alleviate problems inside the unit. Remember, any plan to ameliorate a hoarding problem should call for periodic unit visits during the accommodation process - as often as once a month. However, once the resident has brought the unit to an acceptable condition, re-inspections should probably not occur more than quarterly.

If the Process Fails, Protect the Property and Other Residents

If the resident ignores warnings about lease violations or otherwise fails to address hoarding problems, proceedings to recover possession of the unit should be undertaken.

To determine whether a resident with a hoarding problem poses a direct threat, an individualized assessment must be made based on reliable, objective evidence, such as current conduct or recent history of overt acts. The assessment must consider:

The nature, duration, and severity of the risk of injury;
The probability that injury will occur; and
Whether any reasonable accommodation could eliminate the direct threat.

Be Prepared to Give Multiple Chances

Even if it is proven that a resident’s hoarding justifies eviction, owners should be prepared for further delays under certain circumstances. Courts are inclined to give the benefit of the doubt to a disabled person unless it is clear that they are a direct threat to the property. A recent court case illustrates the hesitancy on the part of some courts to remove residents due to hoarding issues. The case is 140 West End Ave. Owners Corp v. Dinah, L., New York, November 2019.

Facts of the Case:
- The resident was an elderly woman who had lived at the community for ten years.
- In 2017, due to severe hoarding, the landlord undertook eviction proceedings.
- The resident amassed garbage, books, and newspapers, resulting in infestation, unreasonable odors, and an increased risk of fire.
- After a year, a court-appointed a guardian with authority to go into her unit, arrange for heavy-duty cleaning, and if necessary, remove the resident from the premises to complete the cleaning.
- After multiple attempts to resolve the matter, the case went to trial in 2019.
- An employee of the management company testified that strong urine and garbage odors continued to emanate from the unit as late as the day before the hearing. A 2018 cleaning had eliminated the odors only for a few weeks.
- A maintenance worker who had been in the unit twice to inspect the HVAC system testified that he observed piles of garbage, clothing, papers, and other debris that made navigating the unit difficult and that there were extreme odors of urine and feces.
- Management had photos, which showed garbage and clutter strewn throughout the unit.
- The resident’s next-door neighbor also testified about strong and unpleasant odors coming from the apartment.
Ruling:
- The court ruled that the landlord proved that the resident breached the lease by maintaining a nuisance, which interfered with other residents' use and enjoyment of their homes. Since the condition continued over a two-year period, it was a clear continuity and recurrence of objectionable conduct.
- However, the court, using its discretion, said that the resident would be likely to suffer extreme hardship if a stay weren’t granted. Furthermore, the guardian was making good faith efforts to secure a safe, affordable dwelling for the resident and that is was reasonable to give the guardian more time to do so. Also, the resident appeared to be cooperating with the owner and guardian.
- The court granted a stay of execution for 90-days to allow the guardian time to sell her unit and relocate her to a suitable environment, or in the alternative, to allow the guardian an opportunity to cure the nuisance condition, without prejudice to see a further stay upon a showing of good cause.

This case illustrates the difficulty that may be encountered in attempting to remove a resident with a hoarding problem. While eviction may ultimately be the only solution, "bending over backwards" to assist a hoarding resident in resolving the issue is strongly recommended. In this way, if legal action later becomes inevitable, the courts are more likely to be sympathetic to a landlord’s position.

It is important to understand that fair housing law may protect residents engaged in hoarding behavior, but there are limits to those protections. Having a process in place to deal with hoarding issues as they arise will go a long way toward ensuring a satisfactory outcome for landlords facing this problem.

Hoarding - A Challenge for Housing Managers

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