Condominium boards of managers and cooperative corporation boards’ of directors face special challenges when dealing with unit owners or  tenant-shareholders who suffer from mental illness, psychological disorders  and/or substance abuse.  

 While these individuals may engage in conduct that can be characterized as  ranging from merely annoying to dangerous to self and/or other tenants in the  building, boards often find it difficult to appropriately respond to the  situations such conduct creates, especially if a tenant-shareholder’s difficult behavior arises out of an underlying mental illness. For example,  co-op and condo boards have to be careful not to violate any federal laws that  protect mentally ill tenants, such as the Fair Housing Act (42 U.S.C. § 3601, et seq.) (“FHA”), or the Americans with Disabilities Act (42 U.S.C. § 12101, et seq.) (“ADA”).  

 Discrimination Prohibited in Housing

 The FHA and ADA prohibits discrimination against the mentally ill in the terms,  conditions or privileges of renting a dwelling, or in the provision of services  or facilities connected with the dwelling. It also broadly defines “discrimination” to include refusals to reasonably accommodate mentally ill individuals when  such accommodations may be necessary to give them the equal opportunity to use  and enjoy their living premises, except when that may impose an undue resource  burden on the board or the individual poses a “direct threat” to self and/or others.  

 Condo and co-op boards also have to proceed carefully if they are unsure whether  a tenant-shareholder or unit owner is mentally ill or has a substance abuse  problem. Some individuals may choose not to disclose mental health issues while  others may not know that they have such an issue that requires intervention.  Furthermore, while some objectionable conduct like unconcealed substance abuse  can be associated with a mental illness, others like noise nuisance and threats  might, in some cases, be attributable to other sources.  

 Despite these difficulties, condo and co-op boards have some room to intervene  when a person with a mental health issue engages in conduct viewed as  objectionable. In fact, boards should not wait for a crisis before attempting  to address complaints about the conduct of such an individual.  

 Seek Early Intervention

 However, early interventions may not be possible in many cases, especially if a  person’s compromised mental health impairs that individual’s ability to make objectively reasonable decisions, or to understand how his/her  behavior may be offensive to others. In these instances, it would be advisable  to seek the services of a mental health law attorney. This professional can  provide guidance to the board in navigating the frequently complex laws  relating to board intervention in situations involving persons with mental  illness and/or substance abuse. In fact, a mental health law attorney can  specifically guide boards in the implementation of feasible alternatives to  eviction, depending on the type and symptoms of mental illness and/or substance  abuse manifested by the individual.  

 For example, a mental health law attorney can assist condo and co-op boards in  instituting guardianship proceedings pursuant to Article 81 of the New York  Mental Hygiene Law against persons who, because of a disability, are unable to  provide for their personal and/or financial needs, and are likely to suffer  harm as a result. All the involved parties generally benefit, as the condo or  co-op board is able to retain the tenant and continue receiving income, while  the tenant-shareholder or unit owner receives necessary care and assistance. In  other cases, the resident’s offensive behavior may result from non-compliance with a treatment plan. Since  such individuals are usually able to control their offensive behavior once they  resume the prescribed medication and follow-up regiment, a mental health law  attorney can work with the board to have an Assisted Outpatient Treatment (“AOT”; See New York Mental Health Law § 9.60 (Kendra’s Law)) order issued for the mentally compromised tenant. If an AOT court order  is issued, a treatment team will assist the tenant-shareholder or unit owner to achieve compliance with treatment.  

 In more serious cases, where behavior is likely to result in serious harm to him  or herself, a mental health law attorney can assist a board in having a Mental  Health Warrant issued by a court. Once a warrant is issued, the  tenant-shareholder or unit owner will be brought before a judge, who then  determines whether the individual’s condition requires removal to a hospital for evaluation and possible  treatment. Condo and co-op boards can also benefit from a mental health law  attorney’s expertise if a mentally compromised tenant needs placement in a more  supervised setting. An attorney with expertise in this area can guide the board  through the process of facilitating admittance into such facility,  participating with family or other loved ones, as appropriate, and in  navigating the legal landscape in this area.  

 As exhibited by the above illustrations, a mental health law attorney can offer  condo and co-op boards a variety of legal alternatives when dealing with the  mental health issues of their tenant- shareholders or unit owners. These  alternatives can greatly increase goodwill between the board and tenants, and  enhance the board’s reputation for proactively addressing issues that may otherwise have resulted  in negative implications and outcomes. When addressing situations involving  mental health issues and tenants, condo and co-op boards may instinctively view  eviction as the only option; potentially a very costly and adversarial process  if the tenant challenges this in court. Additionally, such an action may cause  the board to be viewed in a very negative light.  

 No board wants to be viewed by the public or their tenant-shareholders as being  uncaring or unappreciative of the struggles faced by tenants who suffer from  mental illness or other psychological disorders. At the same time, condo and  co-op boards also have legitimate concerns about maintaining a peaceful and  safe environment in their dwellings. A competent mental health law attorney can  guide these boards to successfully weigh and assess these competing interests,  and pursue alternatives to eviction they may not have been aware existed.  

 Most importantly, a mental health law attorney can be involved and recommend  interventions, if needed, at an early stage. Boards do not have to wait until  the individual’s conduct reaches an objectionable level before intervening. Instead, with the  help of a mental health law attorney, they can be more proactive and address  mental health issues appropriately and effectively before they result in  significant inconvenience to the tenant-shareholder or unit owner, and possible  financial costs to all.    

 Carolyn Reinach Wolf, Esq., is chairperson of the Mental Health Law Group at  Abrams Fensterman, LLP. The practice addresses all concerns involving mental health, mental illness,  substance abuse, capacity and mental hygiene law. Mark Frimmel, Esq., is a partner, handling all aspects of the firm’s diverse real estate practice.