Lynn Dover, Esq.
July 2008
Scenario #1: “I have a resident who keeps accusing my maintenance man of coming into her apartment when she isn’t home and moving her things around. She also accuses him of stealing from her. I reported this to my supervisor, and we’ve investigated her complaints and can find no evidence of wrongdoing by our maintenance man. I even changed her locks twice, and I am the only person who has a key. If she has a work order, I go with the maintenance man, open the door for him and stay in her apartment with him during the repair. She still continues to accuse him of coming into her apartment and moving and stealing her things.”
Scenario #2: “We are receiving complaints from a number of residents about another resident who is yelling, screaming and cursing at the top of his lungs and making loud pounding noises in his apartment at all hours of the day and night. We’ve tried talking to the resident, but the behavior continues. We even called his sister, who is his emergency contact, and she said that he is schizophrenic and that he must have stopped taking his medication. She says there is nothing she can do to help.”
Scenario #3: “One of my residents keeps complaining about noises and vibrations coming from her walls and floor. I’ve sent maintenance to her apartment numerous times, and they can never hear any noises or feel any vibrations. She keeps calling several times each day and complaining about the same thing over and over, and lately she has been hostile and rude to my staff, not to mention she is taking up a lot of valuable staff time.”
Scenario #4: “We got a call today from a resident who said that her neighbor keeps knocking on her door and accusing her of spying on him and controlling him through his television set. She said the neighbor has now threatened to beat her up. The resident is tired of being bothered by him and is afraid he will carry out his threat.”
If any of these scenarios sound familiar to you, you’re not alone! Many of our clients are faced with such behavior-related situations. Often, clients are tempted to deal with such problems by serving a notice to terminate the offending resident’s tenancy.
Unfortunately, taking steps to terminate the tenancy can subject you, the property and the company/owner to potential fair housing liability. Both federal and state fair housing laws provide protections for people with mental disabilities. In California, if a mental or emotional illness or condition limits any major life activity (such as working, socializing, etc.), it is considered to be a disability.
Fair housing advocates and enforcing agencies take the position that before you can evict a mentally disabled resident who is creating problems for other residents or management, you must first take steps to try and accommodate the resident’s disability – this generally means trying to find a way for the resident to have a successful tenancy. Some examples of attempts to accommodate are:
- Meeting with the resident to express your concerns and ask whether there is anything that management can do to help the resident comply with his lease and the rules. Document this meeting or confirm your effort to meet by letter if the resident will not cooperate with a meeting.
- Reaching out to family members or other emergency contacts to see whether they can (or will) help. When doing so, be careful not to share confidential information about the person. An example of an acceptable inquiry might be: “We are having some behavior issues with John. We noticed you are his emergency contact person. We are hoping that perhaps there is something you can do to assist John in coming into compliance with his lease and the rules so that he can maintain his tenancy.”
- Reaching out to social service agencies, such as Adult Protective Services, the PERT team, County Mental Health, caseworkers, etc., to see whether they can be of assistance. Note that the ability of such agencies to help the resident is often limited by the law. If the resident won’t agree to get help voluntarily, there is usually not much that the agency can do unless the person is a clear, direct threat to others or himself.
- Offering to involve a neighborhood mediation service (if there is a dispute between the resident and other residents).
- Writing warning letters (over and above the number of warnings you would ordinarily give to a non-disabled resident) giving the resident additional opportunities to bring behavior into compliance with the lease and rules.
These are just some examples of steps that can be taken to try to accommodate a mentally disabled resident. You should always thoroughly document each step taken – the date, who was involved in the conversation, what the result was, etc. We recommend that you write letters to the resident confirming any discussion/meeting and stating clearly what is expected of the resident in order to save the tenancy. Copies of letters and other warnings should be kept in the resident’s file. The goal is to have a clear paper trail of your attempts at accommodation in case those attempts fail (which they often do) and termination of the tenancy becomes necessary. It is not unusual for a fair housing complaint to be filed once the eviction has been started.
There is an exception to the requirement to accommodate if the person is a clear, direct threat to the health and safety of other residents or the property. For instance, if the resident brandishes a weapon at other residents or sets fire to the apartment, we can generally move directly to termination of the tenancy. However, if, during the eviction process, you receive a request to accommodate, you have an obligation to consider whether that request is reasonable under the circumstances. An example might be that the resident is now on medication that controls his behavior and is providing assurances that he will be monitored to make sure he continues taking his medication. Under such circumstances, holding off on the eviction or dismissal of the eviction might be deemed a reasonable accommodation.
Unfortunately, many times there is no clear evidence as to whether the person is a “direct threat.” Using one of the examples at the beginning of this article, if the resident has verbally threatened another resident or a staff member, does that constitute a clear, direct threat to the resident/staff member’s health and safety? Fair housing advocates will generally argue it does not. However, you have a duty to protect your other residents as well as members of your staff. Often, you must balance the accommodation rights of the disabled person against the rights of your other residents and/or staff members. The bottom line is that dealing with mentally disabled residents who are creating problems for other residents or staff generally involves making a risk management decision. Because such decisions can have financial implications for you, the property and the company, it is recommended that supervisors and/or other upper management personnel be involved in the decision-making process.
You should be aware that no two situations are alike and that each situation involving a mentally disabled resident requires independent analysis based on the facts of the particular case. It is recommended that you get legal advice before taking any action to terminate the tenancy whenever you know or suspect that a mental disability could be involved.
Kimball, Tirey & St. John LLP is a full service real estate law firm representing residential and commercial property owners and managers. This article is for general information purposes only. While KTS provides clients with information on legislative changes, our courtesy notifications are not meant to be exhaustive and do not take the place of legislative services or membership in trade associations. Our legal alerts are provided on selected topics and should not be relied upon as a complete report of all new changes of local, state, and federal laws affecting property owners and managers. Laws may have changed since this article was published. Before acting, be sure to receive legal advice from our office. For contact information, please visit our website: www.kts-law.com. For past Legal Alerts, Questions & Answers and Legal Articles, please consult the resource section of our website.
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