8 minute read
Mental Health & HOAs
By Tiffany N. Smith-Nguyen, Esq. & Dyanne L. Peters, Esq.
The last few years have been hard on almost everyone. Between shutdowns, quarantine, ever changing heath mandates, and economic upheaval, it is no wonder our society seems to be struggling with mental health issues at an unprecedented level.
Unfortunately, in the context of homeowners associations, the mental health struggles of one resident often spill over to other residents, managers, and even the association itself. When these issues do spread, many in the community look to the association to take some sort of action.
Veterans in the industry are reporting resident mental health related issues of both greater intensity and higher numbers than ever before. That places managers on the front line in handling both the complaints and the person who may be struggling with mental health issues.
In this article, we will discuss different types of mental health issues more commonly seen by associations and the various tools and limitations associations have to address them.
Potential Danger
A resident’s declining mental health can take several different forms. A common report might be an elderly resident beginning to show signs of senility, such as wandering the common area in a dazed or confused state or frequently forgetting where their parking space is located.
These cases, while sad, are often the least disruptive to the community, because the resident mainly poses a danger to themselves as opposed to others. It can take quite some time for other members to determine whether their neighbor is simply aging, is an increasingly forgetful hoarder, in danger of burning their house down, or even poses other threats to the community.
Another potentially subtle mental health issue is when a member of the association becomes increasingly sensitive or even paranoid. These episodes become aggravating, because they result in numerous complaints and demands for the association to take action against their neighbors, for every reason or no articulable reason at all.
It is easy to dismiss this resident as a busybody and an annoyance. After all, this is a popular sitcom trope such as Bewitched’s Mrs. Kravitz or Violet Bucket from Keeping Up Appearances. What is not easy to dismiss is the amount of work one such person can cause for management and the board and the concern of whether or not this type of behavior will escalate into something more serious.
The third type scenario is less benign and amusing. There has been a sharp increase in residents who are physically or verbally abusive. They engage in threats or even violent outbursts directed at neighbors, association vendors, managers, or even the board. From expletive laden outbursts to chasing people with bladed weapons, firearms, or even a motor vehicle, incidents involving these residents often create a demand from the community for the association to take immediate action.
Association Action
In each situation, before deciding on what action to take, the association must determine whether it has the authority and the obligation to take any action at all.
For example, does the association have the power and authority to contact an elderly resident’s family members? How does the association know the resident is actually senile and does it matter? Is it an actionable breach of privacy to use association records for such purpose?
A board that intends to help stabilize the community interest may be exposing the association to more liability by stepping outside its authority to act and breaching its fiduciary duty.
In anticipation of just such a scenario, the association should seek emergency contact information for each new resident as they move in. This may help shield the association were it to contact an emergency contact to report concerning behavior.
So, where does the association’s responsibility begin and end?
Enforcement of Governing Documents
One answer to this question is often contained within the association’s CC&Rs. Some CC&Rs grant the board broad power to take action when the health and safety of a member or resident is implicated while other sections empower the board to act only when the wellbeing of the community as a whole is at issue.
One of the main purposes of the association is to enforce the governing documents, especially when it involves common area. If a resident’s conduct violates the governing documents, such as violation of a nuisance provision or code of conduct, the association is usually empowered to take action to address the matter to preserve the community interests.
However, an association can only act within the confines of the governing documents. This means that the board is required to follow the procedures set forth in the association’s enforcement policy in enforcing behaviors that violate the governing documents.
While the regular progression of warning notices, hearings, and fines may be an effective strategy in dealing with normal complaints, the association may need to escalate enforcement against those who have exhibited aggressive behavior or those with other mental issues who cannot comprehend the nuisance they are causing in the community. enforcement policies to ensure that they provide some flexibility in enforcement actions and consider adopting a code of conduct.
Neighbor-To-Neighbor
Sometimes residents with mental health issues do not actually violate an association’s governing documents and cause private disturbances with other residents, or the mental health issues lie with the busybody neighbor who unceasingly reports innocuous behaviors.
Unfortunately, associations are often not designed to address complaints between neighbors (i.e., “neighbor-to-neighbor disputes”). This means an association may have no or limited ability to involve itself in issues between neighbors unless the complained of behavior/ actions of a resident are a violation of the governing documents.
Residents who demand further action may be reminded that owners can look to other authorities who may have jurisdiction over the matter, such as the police, social services, etc.
An association may consider adopting a communications policy and/or a neighbor-to-neighbor policy to address excessive or non-violation complaints. It may also suggest that the parties try to engage in mediation to see if a neutral party can find some way of resolving the dispute.
Social Services
For a resident who is in the first category (i.e., senile or in mental decline, etc.), the association may not have the ability, due to privacy concerns, to reach out directly to family members or doctors to obtain care for the resident. In cases like this, it may be advisable for the association to contact their county’s social services department.
In 2005, California enacted a state law called the Mental Health Services Act (MHSA). The MHSA provides state funding to counties for mental health programs. Each county has resources such as a confidential access line and information on how to get mental health assistance for the resident.
Law Enforcement
For abusive residents, law enforcement involvement may become necessary. Associations are not authorized or equipped to immediately handle a resident who displays physical aggression. A manager, board member, or other resident should not be expected to physically restrain or force/confront another resident as it may put them in danger and/or cause liability for the association.
Law enforcement should be called, and the association should keep a record of all official reports. Owners who report an immediate threat should be directed to call law enforcement, and associations should be on standby to provide contact information for nearest police, law enforcement, or other emergency service.
Restraining Order
If law enforcement has failed to resolve a situation with a resident who persistently displays aggressive behavior towards management, other vendors, or the board, the association should consider seeking a temporary restraining order (TRO) from the superior court.
A restraining order targets personal conduct by the harasser and may require the harasser to stay away from the victim. Depending on the conduct, restraining orders can be valid for up to three years and offer protection to both the target of the conduct and their family. Associations should work with their legal counsel to determine if a TRO is appropriate.
Dealing with people who have mental challenges requires managers to be aware of the different types of behavior that may impact their communities. Often, the standard enforcement efforts are not capable of deterring future violations. Associations should consult with their legal counsel to determine the best course of action to take with regard to a resident who displays the types of behavior described in this article.
Tiffany N. Smith-Nguyen, Esq.
Dyanne L. Peters, Esq.
Tiffany N. Smith-Nguyen, Esq., and Dyanne L. Peters, Esq., are attorneys with Delphi Law Group, LLP and have 7 and 5 years of experience in the industry, respectively.
