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Subject: Owner condition
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WayneG1
(California)

Posts:8


01/04/2020 10:03 PM  
An elderly man who owns a condo in San Francisco hi rise has medical condition that causes unsanitary conditions in his bathroom. Owners of other units have complained about oders and possible air quality issues. Property management contacted city adult protective services who paid him a visit and offered services and help which he refused. Owner below this unit is insisting management do something but management and hoa say because it is private owner issue they cannot do anything else.
MelissaP1
(Alabama)

Posts:8875


01/05/2020 12:39 AM  
Ask the complainers what solution they want? Work from there. Explain why such options are not legal or responsible for. May be nothing can do if they refuse help from outside sources.

Former HOA President
SheliaH
(Indiana)

Posts:2851


01/05/2020 6:47 AM  
Does anyone know the man's family? If so, talk to them and see if they can help, but keep in mind he might not accept help from them either.
AugustinD


Posts:2335


01/05/2020 7:10 AM  
Posted By WayneG1 on 01/04/2020 10:03 PM
Owner below this unit is insisting management do something but management and hoa say because it is private owner issue they cannot do anything else.
Do the condo's covenants say anything about "nuisances" being prohibited? This is typically the covenant a Board could (and should) use to first inform the owner of a violation, then as needed, impose fines. Furthermore the owners subjected to the nuisance could send a letter of demand to the owner causing the nuisance. WayneG1, are you advising the owners affected by the nuisance, or are you advising the Board?


CathyA3
(Ohio)

Posts:655


01/05/2020 7:15 AM  
I'd run this past the association's attorneys and follow their advice. I'd also have a look at the Davis-Stirling web site (https://www.davis-stirling.com) to see what they have to say about dealing with elderly residents in California. It's a complicated situation because the individual owner's rights can conflict with the HOA's duty to provide a safe environment and protect condo property for the rest of the owners.

Our association's attorney talked about the things an association needs to consider when dealing with such issues - and all of these can be a source of litigation:

* Elderly residents with special needs have a right to fully enjoy their units.

* They also have a right to privacy.

* It is the association’s duty to ensure the health and safety of all residents once it knows of a potential problem.

* The association must protect residents’ right to the “quiet enjoyment” of their units.

* The association must protect its property.

* Association board members are part of a community of neighbors and friends who may want to provide personal assistance such as driving, repairing, helping with medicine, etc.

* Association board members are also directors and officers of a corporation.

It sounds like the OP's condo association has taken the right steps so far. They should also document every action and decision they make since it's unlikely that everyone will be happy with whatever outcome results.
AugustinD


Posts:2335


01/05/2020 8:43 AM  
If CathyA3's HOA's attorney is saying in part that this is a sensitive situation, then I agree. CathyA3's HOA attorney seem to be indicating that there are competing legal rights here: The right of the elderly person to "fully enjoy" his or her home, and the right of adjacent homes to be free of odors that may be severe enough to qualify as a legal nuisance. This is a dispute where the Board could be sued either way (takes action or does not take action).

Suppose this elderly resident, with special needs, uses colostomy bags. It appears this is often an odor problem. From my reading, the odor is not all that manageable. I can imagine being the elderly owner and getting a letter of violation from the condominium Board. I would be devastated, embarrassed, humiliated and likely in distress. This might end up aggravating my physical condition further.

Meanwhile the owners of adjacent units are now on record with the Association as having complained about the odor. Let's say the odor is obvious to any guest who comes into the adjacent units. It's entirely possible the odor may cause headaches. The adjacent owners realize that, if they want to sell their unit and move, they will have to disclose the odor and sell at a greatly reduced price. (There is case law where condominium odors were the subject of dispute. So fatr I see appeals court decisions addressing neighbors cooking with curry; neighbors having many cats with urine odor problems; and a condo that had an improperly sealed sewage pipe, leaking odors into a unit. The drastically lowered sales price was noted in one of these disputes.)

Where does the elderly owner's (with special needs) rights end and where do the adjacent owners' property rights begin? This attorney's advice seems helpful: https://www.seacoastonline.com/news/20170303/how-to-deal-with-nuisance-smells-in-condos. If I were the board, I would ask management to go to the adjacent owners' homes and check for odors. If the odors are deemed severe and persistent, then next I would recommend that management have a professional inspect to ensure sealing between the elderly owners unit and adjacent units has been achieved as well as possible. I think the board does have at a minimum these obligations.

Suppose everything possible has been done by the Board to eliminate the nuisance odor. Pursuant to its covenants, is the HOA obliged to issue a violation to the elderly owner? Or would doing so amount to a violation of, say, Fair Housing law (discrimination on the basis of age and/or disability)? (Let's stay away from privacy law for the moment.) Fair Housing law says reasonable accommodation must be made. Is it reasonable to ignore a terrible odor that is affecting the value of adjacent condos; causing headaches; and resulting in these adjacent owners being unable to enjoy their home?

I would be miserable having to rule on this. Yet Directors agreed to make difficult decisions (with the advice of professionals) when they volunteered to be a director.

Of course the Board should check with the HOA attorney. But right now, with the aforementioned assumptions, I think the poor gentleman is stuck with getting a violation. Else the HOA itself could be sued for not enforcing the covenants. In California, the law is clear that a HOA must enforce the covenants (unless a violation of Fair Housing law would occur).

As for privacy, I think the Board can avoid this by noting the apparent fecal odor and saying nothing else about what they think the cause is.

A Board risks a lawsuit whether it does or does not enforce the covenant. If the odor is severe enough, and following an investigation and attempted remedies (that fail) the accounting to me points to issuing a violation to the owner.
WayneG1
(California)

Posts:8


01/05/2020 9:03 AM  
The gentleman has no next of kin. The CC and R’s mention nuisance but are pretty vague. Complainer is a good name because this guy complains about everything. The issue is the owner because of advanced age has trouble with aim.He has a urinary problem and a bladder infection Pees blood all over floor. Toilet pipe rotted out And leaked into complainers unit below. Management got a contractor and replaced owners toilet and ceiling below and and cleaned and disinfected everything in both units , billed to owner above. Complainer is saying that the building ventilation system is now compromised which is totally untrue. He wants the HOa To force the owner to get help.The guy is just a troublemaker. Elderly man refuses any help and will not see a doctor.I think the Hoa has done all they can. I think that’s the best advice, to get the associations lawyers Involved if he continues to press the issue.
JohnC46
(South Carolina)

Posts:9041


01/05/2020 9:05 AM  
Wayne

Tell the complainer to take legal action on his own. Also, could it be a Board of Health issue?
CathyA3
(Ohio)

Posts:655


01/05/2020 9:15 AM  
Our attorney outlined the steps we should follow when we're dealing with issues like this.

1. Communicate in writing with the owner. Use a gentle tone and be factual. Describe how the owner's behavior poses a risk to their own health, safety and property, as well as to that of their neighbors.

2. Communicate in writing to the owner's family, again using a gentle tone and being factual. With luck the family will take the necessary steps to address the problem.

3. Contact local support services for the elderly. They will step in if the family fails to act. You can contact the Eldercare Locator at 1-800-677-1116 to find services in your area.

4. Consider taking legal action, if appropriate, as a last resort. This may depend on the nature of the issue you're dealing with. There was a case in Massachusetts where the courts ordered locks to be put onto an elderly couple's stove and oven to stop them from using them (and leaving them on). However, that was different from the issue that the OP's condo association is dealing with, and such actions may or may not fly in California.

As Augustin said, this is a sensitive issue, but it's one that many communities have to deal with as a result of our aging population.
GeorgeS21
(Florida)

Posts:1829


01/05/2020 9:26 AM  
Wayne,

Is there even more information?

You provided a hook on the first post, then a bit more with unexpected complications and details ....?
AugustinD


Posts:2335


01/05/2020 9:50 AM  
WayneG1, thank you for elaborating. I hear you when you say the downstairs owner complains about everything. But you say the floor above the lower unit's rotted out once because of urine and blood, leaking the latter into the lower unit. You say the problem isthe upper unit's owner's advanced age. The elderly owner may be unlikely to be capable of change. You indicate the cost of remedying the first time was high. I'd wager the inconvenience to all covered many hours and days.

The chances of a repeat seem high. If I were in the lower level, I might very well be on pins and needles, waiting for a repeat. Maybe you have a lot more information about this person's complaining. Right now, I do not think calling him a troublemaker, with regard to this particular issues, is entirely fair.

The question I would want to ask the HOA attorney is: Does the HOA have to wait for a repeat of this damage before taking action? I suppose this will depend on how "foreseeable" future damage is.

Maybe one option is to set up a (severe) fine schedule for those who are repeat offenders? Also, bill the violator for the time management spends remedying any problem? Maybe the HOA needs to give the elderly owner either a lot of incentive to fix the problem; or set up a non-discriminating fine schedule that is so severe that the HOA has the right to foreclose.
WayneG1
(California)

Posts:8


01/05/2020 9:50 AM  
Sorry. This is all the info
WayneG1
(California)

Posts:8


01/05/2020 9:55 AM  
Fines are in place but because of the man’s advanced age we don’t think he fully understands what is going on. The complainer insists that this issue should be handled by the property management company but property management and the Hoa say it’s between owners
MelissaP1
(Alabama)

Posts:8875


01/05/2020 10:15 AM  
It is between owners. The PM works for the HOA. So they in same boat. There is no HOA magical bubble. The laws for such situations vary. No one can enforce anything illegal. If there is damage then the complainer needs to file with their insurance.

Former HOA President
AugustinD


Posts:2335


01/05/2020 10:18 AM  
Posted By MelissaP1 on 01/05/2020 10:15 AM
It is between owners.
It's an alleged covenant violation. California law requires HOAs to enforce covenants, starting with an investigation.
MelissaP1
(Alabama)

Posts:8875


01/05/2020 10:31 AM  
What convenant is in violation exactly? Doe HOA have ability to fine? What is cap of fines? Do not see a violation but annoyance.

Former HOA President
AugustinD


Posts:2335


01/05/2020 10:44 AM  
Read the thread. Nuisance. The OP interprets his CC&Rs' reference to "nuisance" as vague. By contrast, the courts all the time interpret what is and what is not a legal "nuisance." At a minimum the board should have management investigate the odor. Under California law, for the board to say, "Investigating a possible nuisance (in possible violation of the covenants) is not the HOA's job" is nonsense. If the board has already had management investigate the odor and found the complaint to be meritless, then this is what the board should tell the downstairs owner. Granted it's clear from the OP's post that the Board does not want to deal with this. Maybe they will get away with telling members that disputes between neighbors is never the HOA's business. It would not be the first time.
MelissaP1
(Alabama)

Posts:8875


01/05/2020 11:52 AM  
The PM/HOA did take action. They contacted an advocacy agency to make contact. The member refused to accept the help. The HOA or PM has no more "magical" powers than any other human being. The PM being a HIRED contractor of the HOA not necessarily an enforcer of HOA rules unless contracted to do so.

The best way to handle it is to ask someone to get involved to contact a family member. We had to do that in our HOA. An elderly board member was getting to the point of accidently catching things on fire. She'd forget to turn off her stove top. A fellow member located her daughter and had her come in.

Each state varies on laws. The HOA's rules don't overrule those. Their hands and the PM's are tied. They are ONLY 3rd parties to the whole situation. It's like the HOA coming over to your house and telling you to turn down your stereo. How can they actually make you do it?

Former HOA President
SheliaH
(Indiana)

Posts:2851


01/05/2020 12:15 PM  
I'm going through a similar situation with my mother - fortunately it's not as dire as this, but she's at the point where she needs help and won't accept it. I and my sister live out of state, so there's only so much we can do at a distance.

While we continue to work through that, I've been speaking to several people about what can be done before things get really bad, I have learned a few things that may help. The first thing everyone needs to accept is that this won't be fixed overnight and patience is a virtue. In some level, the man probably knows it's getting harder to live alone, but is afraid of asking for help or accepting it because he doesn't want to give up his independence. Many older people will choose independence over safety, even if it's a bad choice. In this case, I suspect there's a cognitive problem because blood in ones led can be a sign of a urinary tract infection. Another symptom is acting loopy, so he really needs to see a doctor.

Call the local area of aging agency in your community and let them know what's happening and get some ideas. You can also call the local police (non-emergency) and see if they can do a wellness check.

For the neighbors who might have a relationship of some sort with man and would be willing to help, they could talk to him (gently) and state what they've noticed recently and ask if things are ok. Sometimes little things like offering to pick up some things at the store can open an opportunity for him to open up to someone he can confide in and then, he can be referred to The aging agency to get help.

As for the trouble making neighbor, it's OK and appropriate to tell him the association can only do so much, so if he's that upset, he could file his own lawsuit against the neighbor and see what happens. Maybe he has tried to talk to The man, but I think once the judge sees what's happening, he or she may be more compassionate and see that the man gets help.
AugustinD


Posts:2335


01/05/2020 12:50 PM  
Posted By MelissaP1 on 01/05/2020 11:52 AM
It's like the HOA coming over to your house and telling you to turn down your stereo. How can they actually make you do it?
A properly written schedule of fines. As needed, this may be followed by the HOA's asking for and receiving injunctive relief from a court.

Reasonable covenants against noise are reasonable covenants against noise. In California, a HOA's failure to enforce the covenants violates state law.
GeorgeS21
(Florida)

Posts:1829


01/05/2020 12:52 PM  
Shelia,

Is the neighbor who has issues, a troublemaker? I don’t get the sense that they may simply be responding to this issue ...
WayneG1
(California)

Posts:8


01/05/2020 1:09 PM  
Recap. Owner has no family. Wellness check was done by CITY who then sent adult protective services. They offered services but the owner refused. The person below insist that the Hoa Do whatever it takes to prevent this from happening again. We feel that the Hoa has done all that they can. Owner complaining now wants to bring legal action against the Hoa.
CathyA3
(Ohio)

Posts:655


01/05/2020 1:30 PM  
Posted By WayneG1 on 01/05/2020 1:09 PM
Recap. Owner has no family. Wellness check was done by CITY who then sent adult protective services. They offered services but the owner refused. The person below insist that the Hoa Do whatever it takes to prevent this from happening again. We feel that the Hoa has done all that they can. Owner complaining now wants to bring legal action against the Hoa.




Since the complaining owner has mentioned a lawsuit, the board should notify the association's attorney and insurance agent. The attorney will tell you if there are any other steps that you should be taking, and you should follow through as he/she suggests and document each step. This will increase the odds of the association prevailing in court. John also mentioned the Board of Health - it may be worth asking them questions since I'm sure they've seen this many times.

Even though the owner may be a chronic complainer, that doesn't mean he isn't justified in this case. Condos are often not tightly sealed, and in his place I'd be concerned about health hazards and damage to my personal property, as well as damage to common areas.
AugustinD


Posts:2335


01/05/2020 1:56 PM  
Posted By WayneG1 on 01/05/2020 1:09 PM
Owner complaining now wants to bring legal action against the Hoa.
Make sure the lower level owner names the upper level owner in the lawsuit. Said upper level owner will perhaps be unable to comprehend what is going on and fail to respond to the lawsuit. Default judgment to the lower level owner. Court formally orders the upper level owner to fix the odor. The upper level owner fails to do so. Back to court for ____? I am not sure what happens next, but it seems like the lower level owner would be making honest, productive progress towards protecting the value of his home (assuming the odor truly is unbearable). Meanwhile the upper level owner is aging with possibly dementia. Neighbors observe strange behavior and call an ambulance a few times. The ambulance crew knows what legal steps to take for the short term. It's becoming clear the guy is a danger to himself. The state eventually takes appropriate legal steps to make him a ward and put him in a nursing home. (Being way direct here. I am sorry for all who have had to watch a relative go through similar.)
MelissaP1
(Alabama)

Posts:8875


01/05/2020 2:30 PM  
I'd tell them to blow the "lawsuit" out their ear. Just trying to get the HOA to do what they want them to do. Anytime someone ever threaten to sue our HOA my response was "I will wait on the paperwork". There is no lawsuit here in my opinion that would hold up in a court of law against the HOA. The owner's issue is with that owner directly. The judge would most likely tell them they are suing the wrong party.

Don't knee jerk react over this. Get legal advice if you all have an attorney. Which IMO the HOA could send the bill for the consultation to that complaining owner.

Again a HOA is YOU and your neighbors... So why is everyone responsible for this issue?

Former HOA President
JohnT38
(South Carolina)

Posts:170


01/05/2020 2:45 PM  
No offense intended Melissa but your response is based on pure emotion and Augustin's response is based on logic and prior case law. If I was the OP I would ignore your rant.
GeorgeS21
(Florida)

Posts:1829


01/05/2020 3:00 PM  
Agree with John.
GenoS
(Florida)

Posts:3477


01/05/2020 4:41 PM  
Posted By JohnT38 on 01/05/2020 2:45 PM
No offense intended Melissa but your response is based on pure emotion and Augustin's response is based on logic and prior case law. If I was the OP I would ignore your rant.

I find it's best to do that as a default position.
MelissaP1
(Alabama)

Posts:8875


01/05/2020 7:22 PM  
Knee jerk reactions and getting involved in situations a HOA isn't to be involved in are what makes HOA's the nightmare people say they are. Simply put. I bow down to NO Lawsuit threat. Take it or leave it. I am just NOT going to spend thousands of dollars on a "legal opinion" when there isn't ANY paperwork or even a legal letter delivered.

Former HOA President
JohnC46
(South Carolina)

Posts:9041


01/06/2020 9:46 AM  
Posted By MelissaP1 on 01/05/2020 7:22 PM
Knee jerk reactions and getting involved in situations a HOA isn't to be involved in are what makes HOA's the nightmare people say they are. Simply put. I bow down to NO Lawsuit threat. Take it or leave it. I am just NOT going to spend thousands of dollars on a "legal opinion" when there isn't ANY paperwork or even a legal letter delivered.




I agree. Do not respond to a threat of legal action. Wait for it.
SheliaH
(Indiana)

Posts:2851


01/06/2020 11:03 AM  
Posted By GeorgeS21 on 01/05/2020 12:52 PM
Shelia,

Is the neighbor who has issues, a troublemaker? I don’t get the sense that they may simply be responding to this issue ...




I wasn’t referring to the elderly man, but the person living below him who’s DEMANDING the board do something. I fully understand his concern about the smell and everything else, but sometimes, looking at the situation with some amount of compassion is more effective instead of screaming lawsuit. Based on what Wayne has said, the elderly owner sounds like he’s too ill to address the issue at all and might not have the cognitive ability to even respond to a nastygram from an attorney, let alone a summons to appear in court. Then what can the board – or the neighbor - do?

This IS a sensitive situation and I agree there has to be a balance between the neighbors’ right to a clean environment without the stink and working with the man in resolving the problem because it appears he can’t live on his own and doesn’t have anyone to look in on him. At least try discussing this with the local department of aging – hopefully, you’ll come across someone who’s addressed these issues before and can provide some tips on approaching him. Maybe if someone acts as if they care about him, he, she or they can earn the man’s trust and then start working with him to address the problems. It may be this will eventually end up in court, but it may bode well for the association if they can show efforts were made to get the man some help before coming to this point.
JohnC46
(South Carolina)

Posts:9041


01/06/2020 11:22 AM  
Posted By SheliaH on 01/06/2020 11:03 AM
Posted By GeorgeS21 on 01/05/2020 12:52 PM
Shelia,

Is the neighbor who has issues, a troublemaker? I don’t get the sense that they may simply be responding to this issue ...




I wasn’t referring to the elderly man, but the person living below him who’s DEMANDING the board do something. I fully understand his concern about the smell and everything else, but sometimes, looking at the situation with some amount of compassion is more effective instead of screaming lawsuit. Based on what Wayne has said, the elderly owner sounds like he’s too ill to address the issue at all and might not have the cognitive ability to even respond to a nastygram from an attorney, let alone a summons to appear in court. Then what can the board – or the neighbor - do?

This IS a sensitive situation and I agree there has to be a balance between the neighbors’ right to a clean environment without the stink and working with the man in resolving the problem because it appears he can’t live on his own and doesn’t have anyone to look in on him. At least try discussing this with the local department of aging – hopefully, you’ll come across someone who’s addressed these issues before and can provide some tips on approaching him. Maybe if someone acts as if they care about him, he, she or they can earn the man’s trust and then start working with him to address the problems. It may be this will eventually end up in court, but it may bode well for the association if they can show efforts were made to get the man some help before coming to this point.




Yes a touchy situation but what is someone to do? Sounds like the courts have to get involved as the man is dangerous to himself and others. He may need to be ruled incompetent and a guardian appointed. I say let the neighbor bring legal action for the good of all.

SheliaH
(Indiana)

Posts:2851


01/07/2020 9:45 AM  
He can bring the lawsuit and he’ll probably win, but I’ve learned that winning a lawsuit and collecting a judgement (whatever it is) isn’t the same thing. If this man is as incompetent as he sounds, everyone will be right back where they start.

Getting a guardian is a good idea, but it’s expensive and time consuming. You may already know the process starts when someone notifies the court that an elderly person can’t care for him/herself. If there’s no family member able or willing to take this on (which happens a lot more often than you think), a public guardian has to be appointed. A doctor has to be consulted so the person can be examined and an opinion given as to why he/she should have a guardian. That person still has legal rights to challenge this (even if he/she really is incompetent). You’d be surprised how well some people can present themselves in court and lead the judge to believe they’re more than competent and toss the whole thing.

But just like HOA board members, some guardians are better than others – in fact, there’s a huge problem with guardianship abuse in this country. Some states are working to change the laws, but we all know how long that can take. Meanwhile, the elderly person who’s supposed to be cared for doesn’t always understand what’s happening or why. Remember, a guardian controls EVERYTHING about that person’s life – where will they live, paying their bills, selling property, etc.

I do feel for Wayne and his community, because this is a thorny situation – and one that many HOAs might have to face sooner than later, as the nation ages and not everyone will have family and/or resources to move to a senior citizen apartment or community where they can get daily checks and not have to worry about maintenance. I still recommend consulting the division of aging to see what could be done and at least make the attempt to get the man some help. I wish I could say how long all this may take to be resolved, but no one can, so I wish them the best.

Wayne, if you’re still reading this, let us know how it turns out by starting a new conversation - however this ends, your community’s experience could help everyone else.
AugustinD


Posts:2335


01/07/2020 10:26 AM  
Posted By SheliaH on 01/07/2020 9:45 AM
He can bring the lawsuit and he’ll probably win, but I’ve learned that winning a lawsuit and collecting a judgement (whatever it is) isn’t the same thing. If this man is as incompetent as he sounds, everyone will be right back where they start.
I looked up how the mentally incompetent are dealt with in civil suits. From all I see, the (civil) court will not appoint an attorney (as it would in a criminal prosecution). Nor will the court, say, order a competency hearing (again that's a criminal court action). If the elderly gentleman cannot or does not defend himself, I believe a default judgment will go to the downstairs owner. (It's not like the downstairs owner has an unreasonable claim or is trying to take advantage of the elderly owner.) The downstairs owner will likely figure that the cost of an attorney to enforce the default judgment is worth the value of his home. It will take awhile, but meanwhile, the older gentleman is likely getting worse. If the odor is truly unbearable and a bona fide unlawful nuisance, I see the downstairs owner getting his way within two years.
AugustinD


Posts:2335


01/07/2020 11:27 AM  
Posted By AugustinD on 01/07/2020 10:26 AM
From all I see, the (civil) court will not appoint an attorney (as it would in a criminal prosecution).
Correction. In California, for one, a court on its own motion may appoint a guardian ad litem for a person lacking legal competence. See California Code of Civil Procedure Section 373. Overview at https://www.tysonmendes.com/client-opposing-party-incompetent-appointment-guardian-ad-litem-incompetent-litigant-california/ . The guardian ad litem is not at all necessarily an attorney. "A Guardian ad Litem is a neutral party who is appointed by the court to investigate and offer an unbiased opinion on subjects directed by the court. Typically, when the investigation is over, the GAL is discharged." -- from avvo
WayneG1
(California)

Posts:8


01/09/2020 3:19 PM  
Update
Complainer insists something be done about elderly owner above so it’s now in hoa lawyers hands
GeorgeS21
(Florida)

Posts:1829


01/09/2020 3:24 PM  
Wayne,

I think, again, that “complainer” is probably a perjorative word, and you should rephrase?
WayneG1
(California)

Posts:8


01/09/2020 3:31 PM  
I only use that word in this forum He is not a very nice person And complains about everything and everyone
Maybe complaintant would be better
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