What Should Your HOA Do to Prevent Hoarding?

May 2012

Hoarding is a growing problem for associations because of the increased risk of fire in multi–family buildings like condos.

What obligation—and right—do you have to regularly inspect your association's units for dangers that would prevent first–responders from doing their job in an emergency? Here we discuss best practices to prevent hoarding.

Delicate HOA Problem

"The hoarding concern is a new issue in terms of public awareness, and the consideration of what that means in a condo building hasn't been undertaken by a lot of boards," says Matthew A. Drewes, a partner at Thomsen & Nybeck PA in Edina, Minn., who represents associations. "When you're talking to someone and asking to, in their mind, snoop around and evaluate how they live, it's a really touchy circumstance. But it's definitely worth thinking about."

It's also a difficult issue because it may implicate mental health issues. "Very often, you're dealing with someone with a mental illness, which means boards have the whole issue of accommodation of a disability, where you have to tread carefully," says Elizabeth White, a shareholder and head of the community associations practice at the law firm of LeClairRyan in Williamsburg, Va. "As Americans are aging in place, associations could encounter more problems because of mental health issues like early– or late–onset of dementia.

"Our managers have handled these things pretty sensitively because they've had their eyes open," adds White. "But the question is how do you insert yourself into that situation and not create liability for the HOA? And how do you do that very delicately and discretely? Social services can help, and I've even had some managers become sleuths and track down long–lost daughters or sons to help with the situation."

Can You Get Access? Maybe Not

To address the problem of hoarding, you must have the power to do that, which can be tricky. But governing documents often have provisions that allow boards to wedge their foot in owners' doors.

"I'd first look to the governing documents to see what those provide in terms of enforcing the HOAs' ability to investigate and address problems that may arise due to hoarding," says Drewes. "Anything that's visible from outside the unit can often be regulated. But if there's nothing visible, there's usually the ability for the HOA to seek to address a condition within a unit that would jeopardize the health or safety of other unit owners."

White would also look to health and safety provisions. "Most condos have in their governing documents provisions that say owners can't do anything to unreasonably increase risk of fire or other hazards," she explains. "There may be openings in governing documents to address the hoarding issue. "

That's all well and good, but how can you know an owner has violated such provisions without inspecting the owner's unit? "Associations have no right, at least in Florida, to go into somebody's unit for the purpose of an inspection," says Jed L. Frankel, a partner at Eisinger, Brown, Lewis, Frankel & Chaiet PA in Hollywood, Fla., who advises community associations. "In fact, I tried a case a few weeks ago where one resident was claiming another resident's garage had been illegally converted into an apartment. The first owner wanted the HOA to make this unit owner uncover whatever was done. The problem for the association was that if there was work done, it was hidden by a garage door. And even the police can't go into someone's home and say, 'Show me your garage.' The judge ruled in my client's favor, saying, 'There's no proof the owners converted it, and the garage looks like everybody else's. Without more, what is it that you want the HOA to do?'"

Frankel says condos may occasionally need to inspect fire sprinkler systems or balconies. So could you schedule quarterly or annual inspections, and while you're there, take a gander for signs of hoarding?

Again, Frankel says no. "You need to have a real purpose to do inspections," he says. "If you were having balcony inspections every six months, that would be a sign they were a pretext and that balcony inspections weren't really what you were performing. Also, if you have 400 units, you'll have that expense of doing those inspections, and people will be irritated by having strangers coming in and bothering them."

How to Proactively Address Hoarding?

Here are two suggestions for reducing the risks from hoarding:

• Take advantage of valid reasons for inspections.

"Local governments can be helpful," says White. "Maybe the local code compliance folks can visit the unit, which takes the burden off the board.

"In addition, a lot of associations are switching their insurance just about every year because of premium increases and coverage," says White. "Prior to or after changing insurers, there's a reasonable basis for doing fire or health compliance inspections. Be proactive before you know you have a problem, and give owners enough notice so you can successfully schedule inspections."

• If you have notice of a problem, contact the owner.

Let's say a neighbor reports that she was talking in the hallway to her neighbor and happened to see inside the owner's unit, noticing that it was crammed floor to ceiling with stuff. Start with a letter to the suspected hoarder saying something along the lines of, "'You've broken rule xyz,'" suggests Frankel. "'We understand this is the condition in your unit [describe the condition], and you have [a certain amount of time] to remedy it.'

"You'd think that if there's no problem, most people would say, 'Come on up and let me show you what the unit looks like. I don't want to get into an adversarial position with the condo,' and it ends there," says Frankel. "The way it doesn't end is if the person says, 'I'm not going to let you come up.'

"Then we need an order from a legal authority to take action. Unless it's an emergency—like a water heater breaks—we can't take action. However, if we know there's a life–safety situation in someone's unit, the association has emergency powers and can demand entrance. Say the neighbor describes the condition as so dangerous the owner couldn't even walk in his unit. That may be a fire hazard and may give us the ability to handle things on an emergency basis."

No doubt, this issue puts boards in a difficult position, possibly even a no–win. "This goes back to a board trying to take on too much responsibility," says Drewes. "It might be wise for the board to raise the issue, promote the discussion about how to ensure people aren't creating unnecessary risks for themselves and others in the community. But the board ought to be careful in trying to make decisions themselves. If they improperly raise a concern when they shouldn't have or haven't raised a concern when they should have, they may have put themselves in legal crosshairs."