San Francisco Apartment Association

Court Talk

OCD Sufferers Have a Right to Create Nuisance

by Clifford E. Fried

Trophy Properties v. Taylor
This column usually discusses published decisions from the various appellate courts. However, a recent eviction trial from our local superior court warrants discussion. A jury has decided that, although the defendant created a nuisance by hoarding and cluttering in her apartment, the tenant couldn’t be evicted because she suffered from a disability and the landlord failed to accommodate her.

In February 2006, Belinda Lyons, the executive director of the Mental Health Association of San Francisco, wrote an article for this magazine entitled “Comprehending Compulsive Cluttering.” The article explained how some landlords have to deal with tenants who are unable to throw anything out and whose apartments are filled beyond capacity, creating health, safety and fire dangers. Many psychologists believe that compulsive hoarding and cluttering are features of several mental illnesses, in particular obsessive-compulsive disorder (OCD).

Under California law (Fair Employment and Housing Act) and federal law (Americans with Disabilities Act), it is unlawful for landlords to refuse to make reasonable accommodations in rules, policies, practices or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.

In Trophy Properties v. Taylor, a tenant proved to a jury that she suffered from OCD, which led to unsanitary and dangerous conditions in her apartment. The tenant argued that her landlord refused to offer her a reasonable accommodation as required by the law. The jury agreed and the tenant gets to stay in her apartment. This is the first time a tenant has successfully defended a nuisance eviction case using this defense.

What is remarkable about this case is that the jury made a finding that the tenant was actually creating a nuisance by allowing the unsanitary and dangerous conditions in her own apartment. State law is very clear that upon the commission of a nuisance, the tenancy terminates. The refusal to provide reasonable accommodations shouldn’t even be available as a defense.

The jury’s verdict in this case, and the judge’s decision to allow the defense of failure to provide reasonable accommodations, is likely to be appealed. A final decision will take a year or two. In the meantime, landlords and their legal counsel have reason to be concerned. In light of this case, how should landlords deal with tenants who clutter their apartments and hoard possessions and trash?

First, the tenant must admit to having OCD and request an accommodation. The problem is that many tenants who hoard possessions and trash deny they have a problem when confronted by their landlords. These tenants also typically discourage landlords from entering their apartments. This makes it difficult for the landlord to learn of the tenant’s disability. And it is difficult to accommodate a tenant when the disability is unknown. Unless and until the tenant makes a request for an accommodation, the landlord has no obligation to accommodate.

Second, when a tenant discloses a disability as a reason for the cluttering or hoarding, the landlord should ask the tenant for documentation from a medical doctor that corroborates the disability and the connection with the condition of the apartment. While it is relatively easy for tenants to obtain these documents or letters from doctors, many tenants haven’t been diagnosed or don’t bother to seek medical advise.

Third, if a tenant requests a reasonable accommodation, the landlord should first ask the tenant how they think they could or should be accommodated. Remember, the laws require landlords to make accommodations in rules, policies, practices or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling. This doesn’t mean the landlord must permit the nuisance to exist.

Reasonable accommodations might consist of permitting the tenant adequate time to seek therapy or medical treatment, or to move possessions into a storage facility. Landlords should direct their nuisance tenant to the Mental Health Association of San Francisco (415-421-2926). This organization provides regular support groups for compulsive hoarders and clutterers.

Landlords should enter into an accommodation agreement with hoarding tenants requiring the tenant to attend a support group, or seek therapy or medical treatment. This will not only give the tenant more time to declutter, but will also provide the landlord with evidence that a reasonable attempt was made to accommodate the tenant if court action is ultimately required.

Garber v. Levit
The San Francisco Superior Court Appellate Division has ruled that an owner needs only a 25% ownership of record to recover possession from a tenant for owner move-in (OMI) purposes. For the past eight years, there has been some controversy as to whether the minimum ownership of record necessary was 50% or 25%.
Prior to 1998, the San Francisco Rent Ordinance required landlords who took title after February 21, 1991, to hold at least a 25% interest in their property in order to terminate a tenancy for owner move-in purposes.

On September 22, 1998, the San Francisco Board of Supervisors amended the Rent Ordinance to require landlords who became owners after February 21, 1991, to have a 50% interest in the property in order to terminate a tenancy for owner move-in purposes (this change was known as the “Bierman Amendment”).

On June 11, 1998, the text of Proposition G was submitted to the Registrar of Voters. Prop. G was approved by voters in November 1998 and included—among its many provisions—was a 25% clause for owner move-ins. Because the text of Prop. G was submitted in June, the text of the proposition contained the version of the owner move-in law that existed prior to the Bierman Amendment.

For many years, the courts interpreted Prop. G and the Bierman Amendment to mean that landlords needed only a 25% interest to do an owner move-in eviction. Then, in 2004, the Appellate Division changed everything and took the position that a 50% interest was required.

Property owner Leslie A. Garber had an outstanding OMI eviction notice, based upon her 25% ownership interest, when the Appellate Division began ruling that a 50% interest in property was required by law. Garber’s eviction lawsuit was tossed out by the trial judge based upon the Appellate Division’s holding. Garber appealed.

On June 13, 2006, the Appellate Division found that the provisions of Prop. G supercede the Bierman Amendment and reversed the trial judge’s ruling that dismissed Garber’s eviction lawsuit.

On appeal, Garber argued that any minimum percentage ownership prerequisite to an owner move-in eviction was unconstitutional. The court sidestepped this argument but accepted the argument that Prop. G and the Bierman Amendment were in conflict and irreconcilable. The one that passed later, in this case Prop. G, is the applicable legislation.

The court also ordered its decision published and transferred the case to the Court of Appeal to review the matter. On July 10, 2006, the Court of Appeal declined to transfer and review these cases. Thus, the case is final and binding on all San Francisco trial judges. Trial courts must start ruling that a mere 25% ownership is required for OMI evictions.

These cases are a shot in the arm for affordable home ownership in San Francisco. Many tenants cannot afford to purchase a 50% property interest in the city. Now tenants wishing to purchase homes will be able to move into a unit with only 25% ownership interest.


The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. The information within this article is general in nature. Consult an attorney for any specific problem. Clifford E. Fried is a partner with Wiegel & Fried, LLP, 415-552-8230. Copyright © 2006, Wiegel & Fried, LLP. All rights reserved.