Hoarding in a rental unit can cause significant health and safety issues, such as pest infestations, mold problems, and increased fire risk. And these issues can go beyond the tenant’s unit to put other tenants at risk. So what can a landlord do about it?
The landlord’s first reaction to a hoarding situation may be to terminate the tenancy or serve a Notice to Cure or Quit. But, because hoarding has been recognized as a mental disability, a different, more complex approach may be required, involving an interactive process that will likely take time.
Hoarding used to be seen by many as just as a nuisance activity. But since 2013 is has been classified by the American Psychiatric Association in its Diagnostic Statistical Manual, Version 5 (“DSM-V”) as an official diagnosable psychiatric disorder.
This means that both federal and state fair housing laws prohibit discrimination based on hoarding, including refusing to make reasonable accommodations for residents with that disability. See 42 USC §3604(f)(3); Govt C §12927(c)(1).
Here are the steps a landlord should take with a hoarding tenant:
- Initiate accommodation. Generally a tenant isn’t entitled to an accommodation unless he or she asks for one. But fair housing advocacy groups take the position that when a landlord knows or should have known that the tenant has a mental disability that may be causing a violation of the lease or rules, good faith efforts must be made to accommodate the resident’s disability before trying to terminate the tenancy. Because hoarding issues are generally obvious and it’s a mental disability, landlords should attempt accommodation before serving a formal legal notice to cure or quit even if the tenant hasn’t asked for an accommodation. This should be done without requiring the tenant to provide verification of disability and need for an accommodation, because the disability and need are very obvious when there’s hoarding.
- Give the tenant time to clean up. A landlord’s attempts to accommodate should involve first giving the tenant informal opportunities to remedy the condition of the unit. The goal is for the resident to make slow, steady progress over a period of time with the end result being remediation of all health and safety issues. If the tenant is willing to work on the problems, it’s helpful to draft a written agreement outlining what the tenant needs to do and within what time frames.
- Terminate the tenancy when it’s necessary. There are times when tenancy termination becomes necessary and is appropriate. The federal Fair Housing Act (FHA) provides a specific exemption from coverage for persons who constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. See 42 USC §3604(f)(9). But case law and interpretations of the law by the enforcing agencies have established that if there’s an accommodation that would sufficiently eliminate the direct threat, then the landlord must explore that accommodation. Because California’s fair housing laws don’t have a comparable exception, landlords must use the accommodation process more thoughtfully and with legal guidance. But when informal attempts at getting the tenant to remedy the health and safety issues are unsuccessful, tenancy termination may be appropriate.
- Serve a notice to cure or quit. California superior courts hearing unlawful detainer actions in certain jurisdictions take the position that a Notice to Cure or Quit, not merely a Notice to Quit, must be served first, even though state law doesn’t specifically require that kind of notice after the reasonable accommodation process has failed. Unlawful detainer laws in many local jurisdictions governing just cause evictions in California, as well as federal law governing subsidized tenancies, require the landlord to serve in advance a curable notice before serving a termination or lease nonrenewal notice.
For more on the legal issues associated with hoarding in rental housing, turn to the new sections written by Lynn N. Dover of Kimball, Tirey & St. John LLP in CEB’s California Landlord-Tenant Practice, chap 4.
Other article you may find useful:
- Can a Landlord Limit a Tenant’s Guests?
- Are Landlords Liable for a Tenant’s Biting Dog?
- Tips for Landlords of Student or Employer Rentals
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