Dealing with Difficult Unit Owners or Shareholders How to Cope with the Mentally Ill?

Dealing with Difficult Unit Owners or Shareholders

 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.

 

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6 Comments

  • We have a mentally unstable person in our building which houses 8 other units with 6 on top of 3units. A fire was started by this person when she purposly set the clothes on floor and set them on fire fortunly someone saw smoke and called fire department. this same person has previously damaged other peoples places My husband and I have a meeting with board to see if they have done anything about this. We live under this person and damage has been done to my place 4 times. this person has had her insurance canceled.We had damage due turning on portable shower head turning water on and placed on floor we got all the water This was purposly done ,we were not home at this time there is more but too much to explain
  • California coop shareholder is handicapped based on mental problems. He is a "trust baby" and is constantly finding nit picking annoyances that are dangerous in his mind. He initiated the first and only mediation our coop has had in 47 years to result in a letter of understanding that he immediately followed by another diatribe of a problem he sees that are not violations of the building codes except in his mind. His actions are costing shareholders. What can we do?
  • I am a tenant in an apartment complex. I just went through seven months of horrible problems with two mentally ill tenants and am still having trouble with one more. The first tenant went off her medication and became so unstable that she spent nights running up and down hallways, pounding on doors and spraying horrible smelling stuff all through the building. She threatened to kill me and would scream at night to be let in at the front door of the building because she couldn't keep track of her keys when she went in and out. Management is gone at night and on weekends, and that is when all of these people do their worst behaviors. She was terrifying. They didn't do anything until she started to damage the building. That cost them money. So she was taken away to a hospital and evicted. The second tenant saw what the first tenant did and decided it would be fun to spray, vent, drip or otherwise spread perfume, chemical cleansers and who knows what else all over the inside of the building to hurt others. This ended up making us so sick we could barely stand it. This went on for five months. Management did not evict her. She is soon moving on her own, thank goodness. The third tenant, who also has mental illness, draws sexually explicit images on windows (it is a male), talks about serial killers and smokes in his apartment against house rules. He also uses excessively strong incense and sprays perfume all around to cover up his smoke. He is getting worse, and I warned management it isn't a matter of if he hurts someone. It's a matter of when. I don't know if they are doing anything. But I want to move before I get hurt by this very strong man who has issues with women. The law makes it difficult to get any mentally ill person removed. Some should not even be around other people. We also have mentally ill tenants who are very nice. We love them and want to keep them because they are such sweet people. But not all mentally ill people are kind. Some are extremely dangerous, and it's a shame things have to become so bad before they can be removed. It puts everyone else at risk.
  • A mentally ill person should not be in their own apartment. My sister is mentally ill and lives in a group home. They need supervision. They are not responsible and could set the apartment on fire if they smoke. It is wrong that other innocent people have to put up with this high risk behavior . We have rights too.
  • Sometimes you have no choice than to put your loved one up in an apartment or condo, for example, so they wont be homeless. The mental health system failed my adult child. Board and care was full of bedbugs and drugs. The mental health system didn't really care about quality workers, doctors, conservators, etc., at the time when our loved one was conserved by the state due to mental illness, and then when let off of conservatorship (because the doctor failed to show up to court to testify on her mental state to renew conservatorship which is done annually), they just let her walk out of the board and care without any idea of where she was headed, if she had a doctor, medicine, money, etc. Funny how condos have to accommodate, but the mental health system and board and cares can be so uncaring. In any case, she was not able to rent a room anywhere or apartment, and so we bought a condo for her for her to live in. We are crossing our fingers and hoping for the best......
  • Actually (Beth Kitty) Not all people with mental illness should be in group homes and they have federal rights. You can sue your co op but that is a slippery slope because of the rights of people w/ disabilities. People with Bi-polar disorder have bad periods. They might need to be hospitalized or get help. Our building has helped elderly and mentally ill by reaching out to agencies and helping them get services. As long as a person with one of these kinds of conditions is taking steps to handle their situation they have rights. You can't say mentally ill people have less rights than you. And where do you draw the line? If every person with mental health issues was at risk of being kicked out of a building by a group of tenants who "decide" what is right or wrong. half of the co-ops in this city would be empty! Sane people play loud music, do drugs. argue with spouses. hit kids, stomp around on the floor above you - These people are not FREAKS. They are human. I have a son with developmental and psychological problems. He can. be loud,. He has meltdowns. he slams doors without meaning to. We do everything we can, get him all the help and services we can, but he moves and relates at a different pace than other people. 99% of our neighbors are truly understanding. But the few who have been cruel & discriminatory rather than getting to know our situation, (especially during quarantine) have made a hard situation worse. In New York, people want to curate their perfect world. but the world isn't perfect and people aren't either. Blaming the mentally ill or people whose issues are more obvious is beyond discriminatory.