On the heels of Mental Health Awareness month and with full restrictions yet to be lifted during the COVID-19 pandemic, stress-related incidents and escalating tensions within community associations are on the rise.
Mental health issues have been exponentially compounded by the fact that social distancing is still enforced and many people who suffer from mental illness are not getting the proper treatment they desperately need.
The attorneys Eisinger Law have had a noticeable uptick in calls from the firm’s more than 800 Florida homeowners and condominium associations clients who are expressing concern and seeking counsel regarding unit owners or residents who are showing acute and ongoing signs of mental illness.
A recent study by the United Nations stated in a policy briefing that the pandemic “has the seeds of a major mental health crisis.” As people from all walks of life, from high-rise luxury condominium owners to residents living in cramped multi-family developments, endure economic hardships and face an uncertain future, mental health must be addressed.
Protecting personal freedoms and living in harmony with your neighbors while in close quarters can be a complex and delicate balance.
Serving on a community Association’s board of directors is a voluntary and unpaid role, one which comes with a variety of responsibilities. In addition to protecting the Associations’ fiduciary duties, the board must also safeguard the health and general well-being of all residents. On top of maintaining an environment where an individual’s personal welfare and contentment is protected, is the increased exposure of liability to the Association for not taking sufficient action, especially after its received repeated warnings.
“Concerns for the health and safety of residents is exponentially increased where there are mental health issues or substance abuse involved,” said attorney Carolina Sznajderman Sheir, a partner at Eisinger Law. “For many associations dealing with these problems, the threat becomes greater when a person’s mental health condition and/or substance abuse condition deteriorates. As these matters go unchecked and escalate, they affect all residents and can interrupt association operations.”
Mental illness comes in all shapes and sizes even in the most exclusive communities. Alarming situations do not always include the brandishing of a physical weapon, Associations often encounter an array of disturbing issues from persons suffering from mental illness and substance abuse.
What are the remedies when one resident regularly harasses fellow neighbors or creates dangerous disturbances and exhibits threatening behavior?
Associations are finding they have limited resources or tools that can be employed when it comes to dealing with mentally ill unit owners/residents. Presently, an Association can ask their legal counsel to draft cease and desist demand letters, issue a fine or suspend the individual’s right to use common elements such as a community pool or fitness center. However, these indirect measures are unlikely to resolve chronic problem or curb the violent behavior of someone suffering from severe mental illness or hallucinations.
When one lives in a condominium or homeowners Associations, the governing documents usually contain a standard nuisance provision which residents in turn agree to abide by. The courts are understandably reluctant to enjoin owners from their own property unless their behavior is so well documented and egregious.
“Unfortunately, I’ve found that the only successful way to remedy these types of conflicts have been to wait for the issue to escalate before law enforcement can actually take meaningful action,” said Sznajderman Sheir, Esq. “I had a trial several years ago that cost hundreds of thousands of dollars for an Association and took several years to resolve before we were finally able to remove a mentally unstable person from the complex who was threatening other owners.”
If a situation becomes so appalling a lawsuit can be filed seeking injunctive relief but the threshold and burden of proof is extremely high. Therefore, it is crucial for every Association to work closely with its legal counsel to properly chronicle and detail every single incidence a violation occurs.
Some volatile residents are known to have, or claim to have, weapons in their possession. Oftentimes, calls to local law enforcement prove ineffective. Unfortunately, police are not able to do much of anything until the situation escalates and becomes violent.
One glimmer of hope is Fla. Stat. 790.401, which came about as part of the Marjory Stoneman Douglas High School Public Safety Act. This allows law enforcement to petition for a Risk Protection Order (RPO) to temporarily remove firearms from a person who poses a significant danger to themselves or others. There are due process considerations built into the statute, including notice and hearing on the matter. The court must determine by clear and convincing evidence that the respondent poses a significant danger of causing personal injury to himself or herself or others by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or any ammunition.
“While the law arguably provides some hope of relief for community associations worried about the wellbeing and safety of the residents, the challenge may be how and when to involve law enforcement,” said attorney Alessandra Stivelman, a partner at Eisinger Law. “Furthermore, each police department likely has procedures and thresholds for how and when to determine when petitioning for a RPO is appropriate. This is where association records and incident reports become crucial to aid in the protection of those involved and assist in the involvement of the applicable law enforcement agency.”
Eisinger Law is a multi-practice Florida law firm focused on community association law, real estate law, developer representation, civil/commercial litigation, insurance law, estate planning and probate. For more information, visit eisingerlaw.com or call 954-894-8000.