Coping with Hoarders - Tane Waterman & Wurtzel

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Stewart E. Wurtzel, Principal, Tane Waterman & Wurtzel What can a condominium board do about a unit-owner causing unsafe or unsanitary conditions?

BACKSTORY This was a problem that revealed the lengths and expense that a condominium may have to go to in order to ensure the health, safety, and welfare of its residents when faced with extremely unsanitary conditions created in an apartment. In this instance, the unit was owned by a family trust. The occupant, a middle-aged man living alone, had a severe case of Collyer’s syndrome. The apartment was littered with papers and garbage and maintained in a wholly unsanitary condition. There were bottles filled with excrement stored throughout the apartment. The odor in the hallway and on the floor was horrendous. The apartment was a constant source of roaches. One trustee, who lived locally, was not willing to intervene and wanted nothing to do with the occupant, his brother; the other trustee, another family member who lived on the West Coast, at first could not accept the description of the conditions in which his brother was living, and subsequently could not convince his brother to do anything.

Police were called to the unit when it smelled as if someone had died inside. The police, with the intervention of the Adult Protective Service (APS), removed the occupant for a couple of days for observation and testing. Although APS promised to have the apartment cleaned and fumigated on an expedited basis, the occupant insisted that he be allowed to clean the premises and safeguard his property. He refused to cooperate with APS.

The condominium had no choice but to begin a court action to obtain an injunction compelling access be granted to the condominium so that it could clean the unit and remedy all the health hazards. The court issued an order mandating that access be given to the condominium and permitted the condominium to clean and sanitize the unit at the unit-owner’s expense. It was not until after the court’s order was signed that the trustee came forward and agreed to undertake the cleaning.

Further complicating the matter was that the unit was being foreclosed by its lender and the trust had no financial interest in the premises. The trust would eventually allow the bank to foreclose on the unit. The family relocated the brother at the time it made the repairs. The unit was sold at foreclosure to a new purchaser. The condominium was able to recover all of the legal fees and expenses it had incurred in connection with the matter.

COMMENT From the time the condominium first demanded access to the time the unit was actually cleaned and sanitized took almost a year. In the meantime, residents on the floor and the building were dealing with horrific conditions. The condominium was very aggressive – it pleaded with family members to intervene and then turned to Adult Protective Services. When it appeared that the approach to the family was falling on deaf ears, it began the lawsuit and moved for an injunction.

Given how busy the judges are, it is crucial for a condominium to move quickly to address conditions created by a “problem” occupant. However, given the time and expense of starting a lawsuit, all efforts must be made to reach out to offending unit-owners to resolve the problem without going to court. Every effort must be made to obtain the voluntary cooperation of the unit-owners or, in appropriate circumstances, family members (especially in the case of the elderly). If no one can be found, attempts to obtain assistance from APS or a community assistance group should be attempted.

If all such efforts are unsuccessful, the condominium must go to court to enforce its bylaws. Not all condominium bylaws allow for recovery of legal fees where the default involved is a non-monetary default. This means that the thousands of dollars the condominium will spend to enforce its bylaws may have to be borne by all the unit-owners as part of common charges. Bylaws must be reviewed and amended to ensure that the condominium can recover this substantial expense from the defaulting unit-owner. From the Desk of SEW:

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