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"Hoarding" A Legal Analysis Presented by: Richard S. Porter.

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1 "Hoarding" A Legal Analysis Presented by: Richard S. Porter

2 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Hoarding: General Overview  Hoarding is the compulsive purchasing, acquiring, and saving of items that have little or no value.  According to the International OCD Foundation, hoarding is a complex disorder that consists of three connected problems: 1) Collecting too many items 2) Difficulty getting rid of items 3) Problems with organization

3 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. The Medical Community: "Hoarding Disorder"  Although traditionally treated as a form of obsessive-compulsive disorder (OCD), the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), released in 2013, recognizes "hoarding disorder" as a distinct condition.  Studies have found about 5% of the population is affected by this hoarding disorder.  There are two main types of treatment that help people with hoarding disorder: cognitive-behavioral therapy (CBT) and medication.

4 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Warning Signs of Hoarding  Diagnosis: Denial vs. Admission of Problem  Typical signs of someone who hoards include: Avoids throwing away possessions Has trouble making decisions about organizing possessions Becomes suspicious of other people touching possessions Feels overwhelmed or embarrassed by possessions Has obsessive thoughts about possessions

5 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Collecting vs. Hoarding  Collecting ≠ Hoarding  In general, collectors take pride in their possessions and enjoy displaying them for others to see. A collector organizes his or her collection, and feels satisfaction while adding to it.  Conversely, hoarders generally experience embarrassment about their possessions and often feel uncomfortable when others see them. There is a feeling of sadness or shame when additional items are acquired.

6 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Why is Hoarding a Problem?  Public health  Entrapment  Fire hazard  Police obstruction  Structural damage to neighborhood  Nuisance  Decrease in property value

7 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Statutory Definition  Hoarding is a term that has rarely been defined by legislative bodies at the federal, state and local levels.  Outside the context of animal hoarding, the Illinois General Assembly addressed the issue once, within the definitions section of the Adult Protective Service Act. 320 ILCS 20/2: The term self-neglect "includes compulsive hoarding, which is characterized by the acquisition and retention of large quantities of items and materials that produce an extensively cluttered living space, which significantly impairs the performance of essential self-care tasks or otherwise substantially threatens life or safety."

8 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Traditional and Contemporary Legal Solutions Traditional  Public and Private Nuisance Law  Enforcement of Local Health, Sanitation and Housing Codes and Zoning Ordinances  Landlord-Tenant Agreements Contemporary  Hoarding Statutes  Task Forces

9 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Public Nuisance: Definitions Common Law  A public nuisance is an unreasonable interference with a right common to the general public. Restatement (Second) of Torts § 821B (1979).Restatement (Second) of Torts § 821B (1979)  A public nuisance, unlike a private nuisance, does not necessarily involve an interference with the use and enjoyment of land, but encompasses any unreasonable interference with a right common to the general public. 58 Am.Jur.2d Nuisances § 31, at 592 (2002).58 Am.Jur.2d Nuisances § 31, at 592 (2002) Statutory  720 ILCS 5/47-5 of the Illinois Criminal Code defines what conduct constitutes a public nuisance, and subsection 15 addresses hoarding-type behavior. "To store, dump, or permit the accumulation of debris, refuse, garbage, trash, tires, buckets, cans, wheelbarrows, garbage cans, or other containers in a manner that may harbor mosquitoes, flies, insects, rodents, nuisance birds, or other animal pests that are offensive, injurious, or dangerous to the health of individuals or the public." ILCS 5/47-5(15)

10 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Public Nuisance: Code Violations  It is common for county, city, or municipal codes to include provisions aimed at the prevention of behavior and practices which the lawmakers classify as nuisances. Example:  PUBLIC NUISANCE: Includes the following: (1) The physical condition or use of any premises regarded as a public nuisance at common law; (2) Any physical condition, use or occupancy of any premises or its appurtenances considered an attractive nuisance to children, including, but not limited to, abandoned dwelling units, wells, shafts, basements, excavations, tree houses and unsafe fences or structures, abandoned vehicles, unsecured and unattended swimming pools, appliances, furniture or other such items; (3) Any premises which have unsanitary sewerage or plumbing facilities; (4) Any premises designated as unsafe for human habitation or use; (5) Any premises which are manifestly capable of being a fire hazard or are manifestly unsafe or unsecured as to endanger life, limb or property; (6) Any premises from which the plumbing, heating and/or facilities required by this code have been removed, or from which utilities have been disconnected, destroyed, removed or rendered ineffective, or the required precautions against trespassers have not been provided; (7) Any premises which are unsanitary, or which are littered with rubbish or garbage, or which have an uncontrolled growth of weeds. Village of Addison Code, Section

11 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Public Nuisance: Inadequacy  Although violations of the county, city, or municipal ordinances or codes can be defined as a public nuisance, courts in Illinois will usually not allow a private cause of action based on such violations unless a private cause of action is expressly authorized by the ordinance or code. See e.g. Thompson v. Tormike, Inc., 127 Ill. App. 3d 674 (1st Dist. 1984) (Holding that a private cause of action is not necessary to achieve the aim of the city ordinance. The fines provided in the ordinance could be substantial and in all probability would deter the commission of the offense.)  As a result, citizens are forced to rely on local authorities to enforce the codes at their own discretion. (discussed in later slide)

12 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Private Nuisance Common Law Definition  A private nuisance is a substantial invasion of another's interest in the use and enjoyment of his or her land. The invasion must be either intentional or negligent, and unreasonable. Willmschen, 362 Ill.App.3d at 553, 298 Ill.Dec. 840, 840 N.E.2d 1275.Willmschen, 362 Ill.App.3d at 553, 298 Ill.Dec. 840, 840 N.E.2d  The Illinois Supreme Court has frequently stated that a nuisance must be physically offensive to the senses to the extent that it makes life uncomfortable. In re Chicago Flood Litigation 176 Ill.2d at 205, 223 Ill.Dec. 532, 680 N.E.2d 265.In re Chicago Flood Litigation 176 Ill.2d at 205, 223 Ill.Dec. 532, 680 N.E.2d 265.  An invasion constituting a nuisance can include noise, smoke, vibration, dust, fumes, and odors produced on the defendant's land and impairing the use and enjoyment of neighboring land. In re Chicago Flood Litigation, 176 Ill.2d at 205–06, 223 Ill.Dec. 532, 680 N.E.2d 265.In re Chicago Flood Litigation, 176 Ill.2d at 205–06, 223 Ill.Dec. 532, 680 N.E.2d 265.  There are no private nuisance decisions in Illinois specifically addressing the behavior that falls under the umbrella of hoarding. However, there is nothing in the private nuisance jurisprudence that would prevent such cause of action.

13 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Violation of Health, Sanitation and Housing Codes & Zoning Ordinances  The most common conditions that result from long-term hoarding violate laws and ordinances that were created to ensure the health and safety of the public and the preservation of property.  Health, Sanitation and Housing Codes and Zoning Ordinances: Most state, county, city, or municipal health and housing codes define number of specific conditions on land or premises which might endanger the health or safety of the public. These include, inadequate plumbing and heating, improper garbage disposal, rodent and insect infestations affecting public health, unburied dead animals, accumulated animal waste, and certain other hazards. The codes also sets forth procedures for inspections, notices, abatement, hearings and appeals.

14 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Specific Violations  Is this a code or zoning ordinance violation?  Garbage = YES Example: All exterior property and premises, and the interior of every structure, shall be free from any accumulation of rubbish or garbage. Melrose Park City Code, Section 307.  Weeds = YES Example: Weeds. grasses and undergrowth are not allowed to exceed 8". Weeds, such as jimson, burdock, ragweed, thistle, cocklebur and other similar species are a nuisance. It is unlawful to allow these weeds on your property. Batavia City Code, Section  Outdoor Storage = YES Example: Outdoor storage is prohibited in all residential and business districts. Aurora Municipal Code, Section L.

15 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Hoarding: Firefighter Safety and Fire Code Violations  Many fire departments are experiencing serious fires, injuries and deaths as the result of compulsive hoarding behavior.  Responding firefighters can be put at risk due to obstructed exits, falling objects, and excessive fire loading that can lead to collapse.  Hoarding makes fighting fires and searching for occupants far more difficult.  Violation of Fire Codes. Blocked exits prevent escape from the home. Storage of flammable objects.

16 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Enforcement of Codes and Zoning Ordinances  Each county, city, or municipality has a procedure in place to ensure compliance with the codes and zoning ordinances intended to improve and protect the health, safety, and welfare of the general public. Common enforcement responsibilities include conducting inspections, issuing noncompliance orders and overseeing the correction of any violations.  Although public officials are responsible for the enforcement of health, sanitation and housing codes and zoning ordinances, enforcement is discretionary, selective, and often unorganized.  To enforce the codes, public officials must first determine whether the occupant is not in compliance. After making such determination the court will issue an order requiring corrective action. Failure to correct any violation can result in fines as provided by the code, abatement orders and contempt of court.

17 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Inspections: How Code and Zoning Ordinance Violations are Discovered  Local codes and ordinances contain inspection provisions outlining officials' authority and procedures to be used. Example: In order to safeguard the health, safety, and welfare of the public, inspectors of the Building and Inspection Department and Fire Department are hereby authorized to make exterior and interior inspections of all dwellings, dwelling units, rooming houses, rooming units, hotels, motels, multiple dwellings and premises... If any owner or occupant of a dwelling unit fails or refuses to permit free access and entry to the structure or premises under his control…the Building and Inspection Department or Fire Department may petition and obtain an Administrative Search Warrant as provided within Section 5.8 of Article 5 of the Revised Code of Ordinances. Mt. Vernon Revised Code of Ordinances, Section 10-15(b)  Violations are often reported by neighbors, and accordingly most local websites provide contact information to the proper inspection authority

18 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Inspections of Private Property– Unconstitutional? "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." – U.S. Const., amend. IV  The courts have interpreted the Fourth Amendment to include the right to privacy in one's home. As such, any warrantless search of private property without proper consent is a violation of the Constitution.  In Camara v. Municipal Court, 387 U.S. 523 (1967), the U.S. Supreme Court held that an administrative search occurred when a municipal official entered a private dwelling to inspect the home for health code compliance.  RULE: Without consent or emergency, any official must obtain a warrant.

19 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Landlord-Tenant Lease Agreements  It is legal for landlords to include in lease agreements provisions requiring the tenant to comply with local codes and zoning ordinances.  In the event of noncompliance, the tenant is often left with the option of remedying the violation or having the lease agreement terminated. Example:  The tenant shall comply with all obligations imposed upon tenants by provisions of the codes applicable to the dwelling unit. City of Evanston Residential Landlord and Tenant Ordinance, Section 5-3-4(1).  If there is a material noncompliance with the rental agreement or subsections (1) of this Chapter…the rental agreement will terminate within 30 days of receipt of notice, unless the breach is remedied by the tenant. City of Evanston Residential Landlord and Tenant Ordinance, Section 5-3-6(1).

20 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Creative Solutions: Hoarding Ordinances and Hoarding Task Forces  Hoarding Ordinances Although many state, county, and municipal statutes and ordinances address health, sanitation and safety hazards in general, there are very few laws on record that specifically target hoarding. However, in the past few years, several municipalities have enacted legislation for the purpose of combatting hoarding.  Hoarding Task Forces To efficiently counteract the problems created by hoarding, many communities establish task forces which are commonly comprised of members from both the public and private sectors.

21 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Example of Local Ordinance  Orange Village, Ohio On February 8, 2012, the Orange Village council revised the Unsafe Dwellings and Structures section of the village's housing code to address the issue of hoarding. Orange Village Code Chapter Section , titled "Prohibited Conditions," mandates that each dwelling be maintained in a fit and habitable condition for human occupation. The code defines an uninhabitable dwelling as "a dwelling containing conditions that result in, or reasonably may result in, serious health and safety hazards to any person residing in the dwelling."

22 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Example of Local Ordinance Pursuant to Section the Orange Village Code, an uninhabitable condition may include the following :  Excessive garbage and refuse within the dwelling;  Kitchens that are unusable due to cluttered stoves, sinks, and tabletops;  Beds and bathtubs holding or containing items to the extent that there is room for sleeping or bathing;  Many unkempt pets in need of care;  Large amounts of combustible materials blocking walking paths and fire exits;  Human and/or animal waste; and  Insect and rodent infestation. Basically, the ordinance prohibits any dwelling that looks similar to…

23 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Violation of Orange Village "Hoarding" Ordinance Picture from blogs.houstonpress.com Picture from corvallisadvocate.com Picture from training.mmlearn.org

24 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Example of Local Ordinance  Orange Village, Ohio According to the ordinance, if a dwelling is found to be uninhabitable, no person shall reside in such dwelling until the condition is abated or removed. Section Failure to comply results in a misdemeanor of the fourth degree for the first offense and a misdemeanor of the third degree for any subsequent offense. Section  Fourth degree misdemeanor = fine  Third degree misdemeanor = fine and/or jail time Abatement: the ordinance also provides that if the occupant fails to remove or abate a condition within the time specified by the ordinance, the Mayor may cause such condition to be removed or abated. Section

25 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Hoarding Statute – Constitutional?  To date there have not been any constitutional challenges to the hoarding ordinances recently enacted.  Potential Constitutional Arguments: Violation of constitutional right to privacy based on a warrantless search (4 th Amendment)  Section : "nothing contained in this chapter shall be deemed to confer a right of entry upon the Village, its officials or employees, without a warrant or probable cause." Illegal government seizure of property (4 th Amendment)  Section Abatement Clause? Need warrant.

26 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. What is a Hoarding Task Force?  Task forces are teams consisting of both public and private agencies and individuals which are responsible for providing a coordinated response to cases of residential hoarding.  Hoarding task forces often include human service professionals from diverse disciplines such as public health, mental health, elder services, housing providers, animal services, and emergency responders.

27 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Task Force Goals  The common purpose of all task forces is to provide a directed and managed response to hoarding cases.  Task force goals include: Education Coordination Identification Removal and sanitation

28 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Task Force Data  Over 75 communities across the nation have formed Task Forces.  Currently there is one quasi-hoarding task force in the state of Illinois, the Self-Neglect Task Force created by Aging Care Connections in LaGrange, IL. This task force addresses the problems of self-neglect among the elderly which often include hoarding.  For a general overview of hoarding task forces visit:

29 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. How a Hoarding Task Force Functions  Each task force is different but below is a general flow chart for how a hoarding case is handled: Complaint or inquiry received Case reviewed by task force Case referred to proper agencies within task force Agency investigates report to determine appropriate intervention plan If consent acquired, meetings will be held with the hoarder and/or other interested parties or family members to obtain resolution of health or safety threats, neglect or abuse issues, or code violations If hoarder is uncooperative, citations are issued to obtain resolution of violations. OR

30 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Animal Hoarding  Animal hoarding is a distinct subset of hoarding, and creates a problem which has been addressed separately by legislatures and humane societies. Stat: According to the Anxiety and Depression Association of America, 40% of object hoarders are also animal hoarders.  Problems: Inhumane treatment Overpopulation Unsanitary Conditions  Result: Major Health Risks

31 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Illinois: Humane Care for Animals Act  In 2001, Illinois became the first state to define and address animal hoarding in the enactment of the Humane Care for Animals Act. (510 ILCS 70/1, et seq.)  The law proscribes the cruel and inhumane treatment of animals.  Penalties for violating this Act can include the following: animal removal, fines, Class A misdemeanor, Class 4 felony  Anyone convicted under this law who is determined by the court to be an animal hoarder is required to undergo a mental evaluation and appropriate treatment.

32 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Aurora Man Guilty of Hoarding Birds Chicago Tribune November 18, 2013 Picture from the chicagotribune.com  An Aurora man who was living with hundreds of birds in his townhouse pleaded guilty today to misdemeanor hoarding and mistreatment charges and was sentenced to probation.  Issue reported to city officials in October  City brought in air quality testing company which deemed the residence not habitable.  Birds removed: 359 live birds 120 dead ones.  Rescued birds sent to a human society.

33 © 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved. Questions or Comments?  Questions or Comments?  If you think of any legal questions or concerns about hoarding, please contact me at: Richard S. Porter, Hinshaw & Culbertson LLP 100 Park Avenue Rockford, IL Telephone: (815)  Thank You


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