DEFENDING EVICTIONS BASED ON

ALLEGATIONS OF HOARDING & CLUTTERING

TIMELINE OF AN EVICTION CASE

Notice Expires

Summons &

Complaint Served

Notice

(5 days to Answer)

File Answer

(2-3 weeks)

Settlement

Conference

(4-5 days)

Trial

Trial can happen as

soon as 23 days

from the date the

tenant receives the

notice

Defenses?

Cured

Failure to provide a reasonable accommodation

Disability discrimination

Cured / Breach is minor or technical / not a nuisance

Dominant motive

Retaliation

TRIAL CONSIDERATIONS

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 l imits one

or more major l ife 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 l imits one or more major l ife 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?

Bil l suf fers from chronic depression that makes him unable to decide what to

keep and what to throw away. Books and papers pi le 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 ful l .

Michiko has possessions in boxes pi led to the cei l ing of her apartment. Af ter her

stroke, she is physical ly unable to reach the boxes and sor t through their

contents.

George’s diabetes causes him to become legally bl ind, making it dif ficult for him

to sor t 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 -r ights-of -hoarders -and-

clutterers/#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 dif ferently 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

plaintif f’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 il lness 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.)

• DISABILIT Y

Does the tenant have a disabil ity 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 disabil ity?

• COST

Does the accommodation impose an undue financial or administrative cost on the housing provider?

• EFFECT

Would the accommodation ef fect a fundamental change in the housing provider’s business?

REASONABLE ACCOMMODATIONS

(THE D.A.N.C.E.)

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

IMPORTANT FIRST STEPS

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

SETTLEMENT CONSIDERATIONS

Sheriff Notice (Notice to Vacate)

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.

LAST MINUTE LEGAL REMEDIES ONCE

THERE IS A SHERIFF’S NOTICE:

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

MISC. CONTACTS

IDEAS?

Erin Katayama

Homeless Advocacy Project

Sara Malan

ALRP