Special Challenges: Strategies for Addressing Issues Associated with Residents with Mental Illnesses

At first it looked like one of the residents was just a poor housekeeper. Plastic bags of garbage were visible through the windows of her condominium unit and dozens of cats were clawing at the windows. The Board was concerned about the presence of rats in the community and the smell emanating from the unit. They wanted to exercise the Association’s right of abatement to remove the trash and clean out the unit. After giving proper notice, the management company arrived with a cleaning crew. The resident called the police. Despite having been shown the provision in the Declaration of Condominium, the officer, not well versed in community association law, refused to let the cleaners in without an order from a Superior Court Judge. The Association’s attorney filed an action seeking to enjoin the resident’s interference with the Association’s right of abatement. At the hearing, the resident appeared and it was clear to the Judge that the resident suffered with mental illness. The Judge, the resident and the Association’s attorney worked out mutually agreeable dates for the Association to come in to the unit and clean.

According tostatistics compiled by the National Institute of Mental Health, an estimated 22.1 percent of Americans aged 18 and older, approximately 1 in 5 adults, suffer from a diagnosable mental disorder in any given year. This figure translates into 44.3 million affected people. While these statistics include some conditions which are not disabling, 40 percent of people who qualify for disability benefits receive them for mental disorders including major depression, bipolar disorder, schizophrenia, and obsessive-compulsive disorder.¹ In the last year, this firm alone has had four serious cases dealing with behaviors which were technically covenant violations but clearly were the result of mental illness. Multiply that by the number of law firms and attorneys practicing in this area and it is easy to see that it may be time to have a discussion about strategies for dealing with mental health issues.

Pursuing remedies available through an Association’s governing documents may provide permanent relief through the termination of a lease of a tenant, or temporary relief as in the case above. Fines, while meaningful in some instances, may be well beyond the concern of someone who is suffering with severe mental illness. Sometimes the remedies contemplated by an Association’s governing documents will address the behavior but not the problem. Minor but persistent violations of the covenants can be frustrating to other residents and members of Associations’ Boards of Directors, but may not reach the level of warranting the expense associated with obtaining equitable relief. Doing nothing violates the Board’s duty to the other members, but if using the remedies available in the documents won’t work, what is the Board to do?

As a threshold matter, the Board of Directors needs to be mindful of the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq. (1968, 1988) (“FHA”) which contains several provisions which hold that mental illness is a handicap which is encompassed by the FHA.² This may impact an Association’s policies on dealing with residents suffering with mental illnesses. In Schroeder v. De Bertolo, 879 F. Supp. 173 (D.P.R. 1995) the family of a deceased condominium unit owner sued the individual board members and a staff member claiming that they had brought groundless civil claims against the owner, entered the unit without permission in an effort to intimidate the owner, and prohibited her from using the common areas because of her mental illness handicap. While we do not know how the case ultimately was resolved, the Court refused to dismiss the claims finding that a condominium board and staff who interfere with an owners right to quiet enjoyment and use of the unit and common areas may be liable under the FHA. The FHA requires Associations to make reasonable accommodations to persons with handicaps, including mental illness. Therefore, even if it violates an Association’s controlling documents, courts may find that a mentally disabled person may be entitled to have a pet. This was the holding in a case involving an apartment lease, in which a court found that under the FHA if the pet is necessary to ameliorate the mental disability of the resident, then the FHA would over-ride the provisions of the lease. Crossroads Apartments Associates v. LeBoo, 578 N.Y.S. 2d 1004 (City Ct. 1991). Even disruptive behavior may be entitled to some protection under the FHA. Finally, while the FHA states that a housing provider is not obligated to permit an individual to live in a dwelling if the tenancy would constitute a direct threat to the health or safety of other individuals, nonetheless the resident is entitled to a reasonable accommodation if the disruptive behavior is caused by a mental illness. Housing Authority of the City of Boulder, 909 F.Supp. 814 (D. Col. 1995). It may be advisable for associations to include handicaps generally and mental illness in particular, in the non-discrimination provisions in their Declarations in order to avoid or ameliorate challenges brought under the FHA.

Clearly Boards would prefer to never deal with situations arising from the manifestations of mental illness. Nevertheless, enlightened Boards may choose to see these situations as an opportunity to educate themselves and the membership of the Association about mental illnesses and to try to move beyond their own prejudices. This is an opportunity to be a positive influence in someone’s life and to intervene at a crisis point in a constructive manner. The first step would be to ascertain whether the resident has any local family members or friends who can be contacted in the event that a crisis appears to be building. This should ideally be done when the resident is not symptomatic. The Board may generate an “emergency contacts” directory for all of the members. Secondly, Boards should consider whether they need to cite symptomatic individuals for every covenant violation. If someone is not cutting their yard, for example, it may be possible to provide that service for them for a limited time and bill it back to their account as a specific assessment. Oftentimes numerous communications from the Association and/or its management company or attorney will only add to the stress and exacerbate a person with mental illness’ condition. Third, every county in Georgia has a Department of Family and Children Services who will investigate calls of neglect. Fourth, many counties, at least in the metropolitan Atlanta area, have specially trained mental health units of the police departments who will come and interview people and suggest available treatment options. If it appears that an individual is a danger to themselves or others, the investigating officer may obtain an emergency court order for involuntary in or out patient evaluation. Fifth, any person may file an application with the community health center for a court ordered evaluation. The community mental health center will then make a preliminary investigation and, if the investigation shows that there is probable cause to believe that the person requires involuntary treatment, then it will seek a petition in Probate Court for an order compelling treatment. (O.C.G.A. § 37-3-61 (1).) Individuals may petition the court directly, but those petitions need to be accompanied by a certificate from a physician or psychologist, a requirement which may be difficult to meet. Most people who suffer with mental illnesses, of course, are not violent and the criminal justice system is ill-equipped to constructively respond to these issues. However, as a last resort, if a resident actually injures someone else, or is threatening other residents in such a manner that others have a reasonable apprehension of immediately receiving a violent injury, it may be necessary to call law enforcement for assistance.

As pointed out by Gary Poliakoff: “These situations create serious moral and ethical questions as to the obligations we have to each other when we live in a communal setting. In many instances there is no legal duty on the association’s part to cope with an individual unit owner’s problems. However, the absence of a legal obligation does not eliminate the community’s moral and ethical obligations.” ³