Dealing with Disorders: Mental Health and Substance Abuse Issues in Homeowners Associations

Our society is facing an epidemic of mental health and substance abuse crises. In the homeowners association context, the suffering can spread to homeowners and residents who have no familial or social bonds

with the person afflicted. Residents, sometimes sympathetic, often angry or frightened, are forced to deal with nuisances created by addiction and mental illness, which disturbs the peaceful enjoyment of their homes and tears at the social fabric of the

community.

These nuisances take many forms. Hoarding can create unsightly conditions, odors, and insect and rodent infestations. Alcohol abuse can lead

to belligerent and disorderly conduct. Psychosis and drug abuse can manifest as incoherent late-night yelling and screaming, property damage, and unwanted fixation on other residents.

Of course, not every instance of mental health or substance abuse

requires board intervention, but when a resident’s behavior creates a nuisance

affecting the community, the board may need to act.

But what can be done?

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The problems created by substance abuse and mental health issues can be unique; however, except in emergency situations, the dispute resolution process established by the Davis-Stirling Act should still guide the board’s efforts. These steps are, in order: 1. Disciplinary Hearing (Civil Code §§ 5850–5865) 2. Internal Dispute Resolution (“IDR”) (Civil Code §§ 5900–5920) 3. Alternative Dispute Resolution (“ADR”) (Civil Code §§ 5925–5965) 4. Court Action (Civil Code §§ 5975–5986)

All the board’s efforts to resolve the dispute should be carefully documented so that if the time comes to ask a judge for an award of attorneys’ fees, the association can satisfy the judge that it did everything it could to resolve the dispute before bringing it to court. (The judge will surely want to know about these efforts!)

RESOLUTION PROCEDURES – Addiction and mental illness issues often lead to situations of extreme nuisance that cannot wait for the standard dispute resolution process to be completed. When there are ongoing serious disruptions to the community or an imminent risk of harm to residents or damage to property, the association is entitled to go directly to court to obtain a temporary restraining order and a preliminary injunction. This is specifically recognized

in Civil Code § 5950(a)(3) The board’s approach of the Davis-Stirling Act, which acknowledges that the should be different depending on whether the problem resident is a tenant necessity of preliminary or injunctive relief excuses ADR efforts. If, after discussing the problem with the association’s or an owner. legal counsel, the decision is made to seek court relief, the association will need evidence. Accordingly, it is imperative to encourage affected Dealing with Disorders residents to document in reasonable detail incidents Continued from page 9 that they observe, and to send to management or the association’s attorney (if counsel is involved) any audio, video, or pictures that are relevant to the situation. If court action is necessary, the association’s attorney will need sworn declarations from witnesses to support a request for injunctive relief. Without evidence, court relief will not be granted.

Mental illness and addiction issues can lead to acute disruptions and criminal behavior that cannot wait for court intervention. Indeed, even after injunctive relief is obtained, the problem resident may ignore the court order and continue their disruptive behavior. Residents should be advised to call law enforcement if the disruption is severe or if they fear for their safety.

Residents often want the association to obtain civil harassment restraining orders on their behalf. The association cannot do this. If residents feel they are being individually targeted by the problem resident, they must go to the court and file for a civil harassment restraining order themselves.

The board’s approach will be different depending on whether the problem resident is a tenant or an owner.

PROBLEM TENANT – When the problem resident is a tenant, the owner needs to be held responsible. The disciplinary steps outlined above should be followed. Fines should be levied when appropriate as a tool to compel the owner to bring their tenant into compliance. (Fines can be an important

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Dealing with Disorders Continued from page 10 negotiating tool, as they can be reduced or dismissed to encourage compliance at no cost to the association.) This can include a demand that the owner commence eviction proceedings against the problem tenant. Though it may sound heartless, the association is not a mental health institution or rehabilitation center; the interests of the other residents in the peaceful enjoyment of their homes takes precedence.

PROBLEM OWNER – When the problem resident is the owner, the board’s options are more limited, because the association has no right to evict even a severely problematic owner from their home. Again, the disciplinary steps above should be followed, up to and including injunctive relief. In extreme circumstances the board can use the leverage of fines, injunctive relief, and even a monetary judgment to pressure the problem owner into selling or renting his property and moving to a home where they will not be a source of conflict for the neighbors.

It is important to have operating rules in place that can help the board deal procedurally with the negative community effects of mental health and addiction issues. While most CC&Rs have general prohibitions against nuisances, more precise rules and regulations adopted by the board can give it the tools to address problem residents. For example, anti-harassment rules may be used to curtail behavior in which the offender is targeting managers, board members, vendors, and/or residents with harassing behavior. “Quiet hour” rules may be used to discipline residents who cause late-night disruptions. Rules against public intoxication in common area amenities may be used to limit drunk and disorderly conduct. The association should have a fine schedule so that monetary fines may be levied for violations of these rules.

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The board is urged to be compassionate with those suffering from addiction or mental health issues. When possible, these persons should be referred to appropriate health service providers. But when these issues negatively impact the community, the board must make decisions in the best interest of the community as a whole. The board cannot require residents to undergo therapy or rehabilitation, so it must use the tools available within the law and the association’s governing documents to restore and maintain the community’s peaceful enjoyment of their homes.

Craig L. Combs is the managing partner of Wasserman Kornheiser Combs LLP, a law firm specializing in providing general legal counsel to homeowners associations. Community managers and board members call upon Mr. Combs to resolve nuisances involving disruptive behavior, harassment, criminal activity, and all the myriad issues arising within the homeowner association context.

Wasserman Kornheiser Combs LLP is a full-service community association law firm, providing all general legal counsel and collections services required by a homeowners association.

The issues which arise within the community association context require specialized legal advice. Whether it is enforcing governing documents, maintenance and repair obligations, abating nuisances, reviewing vendor contracts, member discipline, elections and corporate governance issues, or compliance with the Common Interest Development Act, we offer complete, expert legal assistance for our community association clients.

Assessments are the economic lifeblood of homeowners associations, and delinquencies impact the entire community. Wasserman Kornheiser Combs LLP provides full collections services, from intent to lien letters through judicial and nonjudicial foreclosures, providing and enforcing payment plans, as well as prosecuting court actions to obtain and enforce money judgments. All of our work is in strict compliance with the Davis Stirling Act, the Fair Debt Collection Practices Act, the Rosenthal Act, and other applicable laws. Our attorneys are certified bankruptcy filers with substantial experience advising our board members throughout a delinquent owner’s bankruptcy case. Our post-judgment collections skillset is comprehensive, and our clients’ full recovery of delinquent assessments, costs, and attorneys’ fees is our top priority.

Harassers. Hoarders. Squatters. Aggressive dogs. Aggressive humans. Serious delinquencies. Party houses. Abandoned homes. These are just some of the issues which can arise in a community which tear at the social fabric of a community. Managers and Board members bring their communities’ most challenging problems to us knowing that we will thoroughly and aggressively defend our client’s rights and interests and to the maximum extent possible hold the responsible persons accountable.

Just as importantly, we are also aware that not all conflicts within a community are the homeowners association’s responsibility to resolve, and we counsel our Boards when disputes are best resolved by the residents themselves.

At WKC we never lose sight of the fact that our goals are the same as the Board’s goals: to preserve, protect and enhance values in your community – both financial and aesthetic. We know that success comes from long-term relationships with our HOA clients, bearing this in mind, we bill conscientiously, efficiently, and ethically for our work.

Craig L. Combs Managing Partner