DEFENDING EVICTIONS BASED ON ALLEGATIONS OF HOARDING & CLUTTERING

DEFENDING EVICTIONS BASED ON ALLEGATIONS OF HOARDING & CLUTTERING

TIMELINE OF AN EVICTION CASE Notice Notice Expires Trial can happen as soon as 23 days from the date the tenant receives the notice (4-5 days) Trial (2-3 weeks) Settlement Conference Summons & Complaint Served (5 days to Answer) File Answer

TRIAL CONSIDERATIONS Defenses? Cured Failure to provide a reasonable accommodation Disability discrimination Cured / Breach is minor or technical / not a nuisance Dominant motive Retaliation

FAIR HOUSING AND REASONABLE ACCOMMODATIONS FOR PEOPLE WITH DISABILITIES

FEDERAL LAWS The Fair Housing Amendments Act of 1988 (FHAA) [42 U.S.C. 3601 et seq. (1988)] This Act applies to private and public housing. It covers all multi-family housing consisting of four or more units. Section 504 of the Rehabilitation Act [29 U.S.C. 794 (1973)] This law bars recipients of federal funds from discriminating on the basis of disability (applies to all housing receiving federal money, regardless of the amount of funds involved). The Americans with Disabilities Act (ADA) [42 U.S.C. 12101 et seq. (1990)] This law covers governmental services (housing authorities and housing with local or state government funding and/or administration) and public accommodations (motels, hotels & rental/sales offices of building complexes). Title II of ADA covers housing provided by state and local governments and their entities, including Public Housing Authorities and assisted living programs if funded by local or state finance agency, regardless of whether they receive fed l funds.

CALIFORNIA LAWS Fair Employment and Housing Act (FEHA) [Cal. Gov't Code 12900 et seq.] California law covering all dwellings except an owner occupied house in which only one room is rented out. Unruh Civil Rights Act (no arbitrary discrimination) [Cal. Gov't Code 51 et seq.] California law covering all businesses, including those who engage in rental or sale of real property.

HOUSING PROVIDERS COVERED Apartment buildings Condominiums Housing transactions, including rentals and sales Board & Care Facilities (licensed and unlicensed) SROs (Single Room Occupancy Hotels) Subsidized housing Homeless shelters Transitional housing

POTENTIAL PENALTIES UNDER FAIR HOUSING LAWS Loss of subsidy or funding Actual damages and punitive damages Attorney's fees Injunctive relief Emotional distress damages

DEFINITION OF DISABILITY Disability Defined under Federal Law (ADA and FHAA) Having a physical or mental impairment that substantially limits one or more major life activities Or having a record of such impairment Or being regarded as having such an impairment Disability Defined under California Law Having, having a record of, or being regarded as having a physical or mental impairment that limits one or more major life activities.

EXAMPLES OF DISABILITIES Mental Health Diagnoses HIV/AIDS Developmental disabilities Physical health conditions Alcoholism (past or present) Hoarding Disorder Past drug addiction, if not currently using

HOW CAN A DISABILITY CAUSE A PERSON TO ACCUMMULATE? Bill suffers from chronic depression that makes him unable to decide what to keep and what to throw away. Books and papers pile up in his apartment. Sandra s obsessive-compulsive disorder drives her to hoard appliances and clothes from garage sales into her apartment, which is already full. Michiko has possessions in boxes piled to the ceiling of her apartment. After her stroke, she is physically unable to reach the boxes and sort through their contents. George s diabetes causes him to become legally blind, making it difficult for him to sort through stacks of printed material in his hotel room. Diana s brain injury from a car accident makes it hard for her to remember where things are in her apartment. Because of this, she keeps buying the same supplies over and over again. - See more at: http://mentalhealthsf.org/legal -rights-of-hoarder s-andclutterers/#sthash.w5vc1yb4.dpuf

EXAMPLES OF DISCRIMINATION Denial of requests for reasonable accommodations/ modifications Refusing to rent to a tenant because s/he is disabled Treating an applicant or tenant differently because of a disability A facially neutral rule with a disproportionate impact Newer buildings (built after 3/91) that are not accessible

REASONABLE ACCOMMODATION A change in policies, practices, rules or procedures Necessary because of the tenant s disability for full and equal use and enjoyment of unit Can be requested at any stage of the tenancy: Application stage During tenancy Eviction **LL s can t ask if a tenant needs a reasonable accommodation, but they can let all tenants know they are available.**

REASONABLE ACCOMMODATIONS, CONT D Housing provider need not: Fundamentally alter nature of service (If request is not cost-based, then look at the purpose of the program & what is necessary to achieve the purpose of the accommodation.) Suffer undue financial or administrative burden (If request is cost-based, look at the nature & cost of accommodation and the size of the owner s housing business.)

REASONABLE ACCOMMODATIONS (DIRECT THREATS) In Roe v. Sugar River Mills Assoc., 820 F. Supp 636 (D.N.H. 1993), an apartment complex was required to attempt to accommodate plaintiff s mental disability before it could evict him on the grounds that he constituted a threat to the safety of others. In Roe v. Housing Authority, 909 F.Supp. 814 (D.Colo. 1995), an apartment complex was required to demonstrate that no reasonable accommodation would eliminate or acceptably minimize any risk posed by tenant with mental illness who exhibited abusive behavior, before it could evict him on the grounds that he constituted a threat to the safety of others.

REASONABLE ACCOMMODATIONS (INTERACTIVE PROCESS) Once a request is made, a housing provider must engage in an interactive process with the tenant. Auburn Woods I Homeowners Ass'n v. Fair Employment, 121 Cal.App.4th 1578 (2004): As one court noted, If a landlord is skeptical of a tenant's alleged disability or the landlord's ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue. (Jankowski Lee & Associates v. Cisneros (7th Cir.1996) 91 F.3d 891, 895.)

REASONABLE ACCOMMODATIONS (THE D.A.N.C.E.) DISABILIT Y Does the tenant have a disability as defined by fair housing laws? ACCOMMODATION Is the tenant requesting an accommodation of the housing provider s rules or practices? NECESSARY Is the accommodation necessary because of the tenant s disability? COST Does the accommodation impose an undue financial or administrative cost on the housing provider? EFFECT Would the accommodation effect a fundamental change in the housing provider s business?

IMPORTANT FIRST STEPS Submit a reasonable accommodation request in Writing (bonus points if Dr. support) Get Help! - relatives, social services, APS, IHSS, community groups Get Before Pictures Get Progress Pictures Get After Pictures

SETTLEMENT CONSIDERATIONS Time Multiple chances Tier 1, Tier 2, Tier 3 Who is the decision maker? Government? Landlord? Social Worker? How much time before ex parte application for judgment? Language

Sheriff Notice (Notice to Vacate)

LAST MINUTE LEGAL REMEDIES ONCE THERE IS A SHERIFF S NOTICE: 1 week Stay of execution getting a one week extension is not that hard. Two is less likely. Motion to Vacate Judgment - difficult Judgment was entered because of, inadvertence, surprise, or excusable neglect Petition for Relief Against Forfeiture even more difficult In cases of extreme hardship, the court can restore a defendant s full tenancy. This relief requires all payment of rent become due or full performance of covenants be made.

MISC. CONTACTS One time deep clean through Self Help for the Elderly 415-677- 7618 APS referral tricky for lawyers IHSS if they are recipients of MediCal Cleanoriffic 415-820-7230 Clutter Free Organizing Services 415-346-3205 Fairy Clean 415-322-1011 Hope House Clean (60 and no IHSS) 415-677-7595 Peer Response Team 415-421-2926 If supportive housing case workers can be helpful

IDEAS?

Erin Katayama Homeless Advocacy Project Sara Malan ALRP