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Hoarding: Possession for Possessions?

About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

At the end, all that's left of you are your possessions. Perhaps that's why I've never been able to throw anything away. Perhaps that's why I hoarded the world: with the hope that when I died, the sum total of my things would suggest a life larger than the one I lived.

Nicole Krauss

In recent years, fascination with the strange habits of hoarders has exploded over our television screens. From documentaries such Obsessive Compulsive Hoarder and Britain’s Biggest Hoarder to the eviction stories of tenants such as Brian Clenshaw, and Vivienne Davis; piles of rubbish, tinned food and bric-a-brac have captured the public imagination as never before.

Perhaps stimulated by this heightened awareness, and the government’s galvanised approach to anti-social behaviour, law firms such as Winkworth Sherwood are reporting a large increase in hoarding cases being brought to court. Sherwood reports that cases have increased from one or two a year, to one a month. Such cases are often complex and very costly, as even where costs are awarded in the landlord’s favour, there is little chance of regaining these from the other party.

In light of this, this article examines what hoarding is, what legal powers a landlord can exercise to deal with it and whether there are any practical alternatives to legal action

What is Hoarding?

Hoarding is found across all tenure types, often representing complex and difficult situations for landlords when attempting to secure the safety of their properties and tenants.

Not all hoarders suffer from a mental illness, and it is possible that a person can just make very unwise decisions about the condition of their home. However, hoarding is closely associated with many mental health conditions including schizophrenia, Diogenes Disease (elderly self-neglect), dementia and OCD. There is a growing consensus that hoarding or “hoarding disorder” should be recognised as a condition in its own right and it now features in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5th Edition).

Following the approach of the World Health Organisation, the NHS defines compulsive hoarding as “excessively acquiring items that appear of little or no value and not being able to throw them away, resulting in unmanageable amounts of clutter”. Typically this involves the excessive purchasing or collection of items and the inability to discard of items even when they would have little value to another person. This becomes a significant issue when areas such as the bathroom, kitchen or bedroom can no longer be reached, impairing the inability to wash, clean and cook. Compulsive hoarders are often distressed by their hoarding but feel unable to stop, and it is common to withdraw from society.

Some estimates place the prevalence of hoarding as high as 2-5% of the population. Other data from the Chartered Institute of Environmental Health suggests that hoarding occurs in 20-30% of OCD sufferers.

Dangers and Costs

Hoarding creates many risks to the health and safety of the hoarder, neighbours and anyone who may come into contact with the property, such as contractors or the emergency services.

Living in such cluttered conditions means it often becomes almost impossible to keep a property in a clean and sanitary condition, particularly if animals are also present. Such properties are prone to rodent and insect infestations, mould and blocked drains. Minor repairs are unlikely to be completed or reported.

There is also a significantly increased fire risk: hoarded items are often highly combustible, and can block escape routes. Figures from the Chief Fire Officers Association, released as part of their Hoarding Awareness Week 2014, state that fires are contained within the room of origin in 90% of cases for normal residential homes, but only 40% of hoarding homes.  This increases the risk that the fire may spread outside of the property, a particular danger if in a block of flats or densely built up area.

Hoarding can prevent landlords from fulfilling their statutory duties. By preventing, either by refusing access or making this physically impossible, access to the property for gas inspections, landlords are at risk of breaching the requirements under Section 36(2) Part F of the Gas Safety (Installation and Use) Regulations 1998 to keep gas fittings in a safe condition.  Again, a gas explosion or leak is likely to affect neighbours as well as the hoarder.

Further, at the end of the tenancy, the costs of returning the property to an inhabitable state (and for social landlords to the Decent Homes Standard) can be prohibitive due to the lack of maintenance and care. Should the resident die or abandon the property, there are the additional costs incurred of clearing the contents, which, again, are difficult to recover. 

In short, hoarding means trouble for landlords. Dealing with the problem can involve either a reactive enforcement of legal powers, or a proactive and preventative approach addressing the root cause.

What Legal Actions can Landlords Take?

Hoarding is typically dealt with as anti-social behaviour, so actions taken by landlords are governed by the Anti-Social Behaviour, Crime and Policing Act 2014 (“the Act”), whose powers are currently being phased in. The advantage for landlords is that 2(1)(c) of the Act introduces the concept of “housing related nuisance”, so that a direct or indirect interference with housing management functions of a provider or local authority, such as preventing gas inspections, will be considered as anti-social behaviour.

However, due to the close connection with mental illness, any landlord dealing with a hoarder must first determine whether they are likely to be considered to have capacity or not. This will affect what powers can be enforced against the hoarder, and in which court the case should be heard.

Under Section 2(1) of the Mental Capacity Act 2005, a person lacks capacity if “at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. The element of “in relation to the matter” is essential here as although compulsive hoarders may be able to cope with the essential legal process, they may not have insight into their behaviour and so would not be able to keep to the terms of an injunction even if a landlord were able to obtain one.

Where the hoarder does have capacity, then the main sanctions include injunctions and possession orders.

Injunctions, which compel someone to do or not do specific activities, may be obtained under Section 1 of the Act. They can be used to get the tenant to clear the property or provide access for contractors. To gain an injunction, the landlord must show that, on the balance of probabilities, the hoarder is engaged or threatens to engage in antisocial behaviour, and that it is just and convenient to grant the injunction for the purpose of preventing an engagement in such behaviour.

Another new element of the Act is that it will give the Court the ability to require the tenant to take certain actions. The aim of these “positive requirements” is to encourage the tenant to “address the underlying causes of their behaviour”. So, they can be used to require that a hoarder will cooperate with a support service to address the underlying issues related to their hoarding as well as physically clearing the hoard. 

Tackling the underlying problem through such requirements means that action is more likely to be successful and decrease the likelihood of breaching the injunction. However, where such requirements are attached to an injunction, the landlord must be able to prove that they can enforce and monitor this. This has the potential to put off smaller or private landlords due to the expense, or even large landlords where there is a lack of support services.

Where injunctions are not successful or appropriate, a landlord may wish to seek possession of the property. Severe hoarding will inevitably represent a clear breach of the tenancy agreement to either keep the property in a good state of repair, or to allow access for required works. Landlords will therefore be entitled to seek possession and evict the tenant under either Ground 1, Schedule 2 of the Housing Act 1985 (secure tenancies) or Ground 12, Schedule 2 of the Housing Act 1988 (assured tenancies). As a result of this action, the hoarder would be evicted and the landlord would usually need to clear the property at their own expense.

In the alternative, if a person is found to lack capacity, then an application will need to be made to the Court of Protection. Any decision made on the tenant’s behalf, must be in their “best interests” (Section 1(5)). As an example, Anthony Collins solicitors suggest such an order may contain a foreseeable removal of the tenant every 3 months coupled with the power for hoarded goods to be removed and cleared, which would help the hoarder maintain their tenancy and enjoy a safe living environment. It may be more suitable for the resident to be removed to live in another environment.

In very extreme cases, a person may need to be detained under the Mental Health Act 1983: under Section 135 an Approved Medical Health Professional may gain a warrant to enter and remove a person from the property following an assessment under Section 2.

An Alternative Approach

Although some of the above powers, such as the positive requirements, may begin to deal with the underlying issues, many act to tackle the symptoms rather than the cause of the behaviour and often intervene when the problem is already out of hand. Many housing providers, particularly in the social housing sector, are now leading the way in looking at widening the toolkit for landlords beyond the ‘hard’ legal tools to develop multi-agency hoarding protocols.

For example, the Orbit Social Housing Project, a partnership of housing providers, charities and the fire service, worked to research alternative methods of dealing with hoarding. They produced a toolkit that focuses on reducing the fire risk caused by such tenants by installing fire alarms and fire resistant blankets. The London Borough of Merton has produced a detailed multi-agency protocol which aims to “[e]nsure that when formal solutions are required, there is a process for planning solutions tailored to meet the needs of the customer. Possible solutions include professional support and monitoring, property repairs and permanent and temporary re-housing”.

Stelios Kiosses, of The Hoarder Next Door fame, has also worked within this joint agency approach and argues:

Intervention strategies need to be multi-dimensional and tailored to each individual. Because the issues are so complex a protocol such as this means that the chances of successfully tackling the needs of the client are maximised, with everyone working in tandem for the best possible outcome.

Value for Money 

Realistically, landlords will always need to be prepared to make use of legal remedies such as possession orders and injunctions, as they need to secure the long term viability of their business and assets, to the benefit of their other tenants and wider community. However, there is perhaps more room for a proactive and cost-effective approach which recognises that hoarders are the victims of their own behaviour and so need intervention if they are to address these issues and a prevent a potentially endless and damaging hoard-then-evict cycle. 

With greater investing in preventative and interventionist methods, perhaps landlords will be able to reverse the increase in cases, and decrease their legal budgets.

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Tagged: Housing Law, Medical Law & Ethics, Property Law

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