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Condominium Law FLASHPOINTS October 2020

Kenneth Michaels, Jr., Lakelaw, Chicago
312-588-5000 | E-Mail Kenneth Michaels, Jr.

Enforcing Mask Rules in Association’s Enclosed Common Elements

As the winter months approach and COVID-19 promises to stay with us through the winter, associations are increasingly concerned about maximizing the safety of their unit owners, occupants, and guests by requiring wearing masks within enclosed common elements such as hallways, elevators, and laundry rooms. The question becomes one of what process to follow to promote safety with an enforceable rule requiring masks.

Merely adopting a resolution at a board meeting is not sufficient to create an enforceable rule. The board may articulate a policy by adopting a resolution, but that is not enough. To be enforceable as a basis for imposing fines and eventually, if unpaid, liens, rules, and regulations must be adopted pursuant to a specific process.

The board of directors is empowered by the Illinois Condominium Property Act, 765 ILCS 605/1, et seq., to adopt, amend, and enforce rules and regulations “covering the details of the operation and use of the property.” 765 ILCS 605/18.4(h). Additionally, the definition of “emergency” in the Act with regards to special assessments recognizes that the board’s duties also involve protecting the association’s members and presumably the occupants of the property. “ ‘[E]mergency’ means an immediate danger to the structural integrity of the common elements or to the life, health, safety or property of the unit owners.” 765 ILCS 605/18(a)(8)(iv). Under the Act, a violation of a rule or regulation may be enforced by a fine that, if unpaid, becomes a lien against the unit and may be enforced through an eviction proceeding or a foreclosure. 765 ILCS 605/9(g)(1), 605/9.2(a) – 605/9.2(b).

Sections 18(b)(6) and 18.4(h) of the Act govern the process to adopt rules and regulations or amendments to the rules. The association’s declaration and bylaws should also be consulted. Initially, the proposed rule and regulation need to be drafted and ready for presentment to the unit owners and board for voting. When the board will consider a new set of rules or a restatement of rules, a committee may have been assigned the task of drafting the proposed rules, or an amendment for the current rules may have been drafted by association counsel at the board’s request. In any event, the adoption process begins once the proposed rule and regulation have been drafted.

The proposed rule needs to be sent to all unit owners with 10 – 30 days’ notice of a special unit owners meeting for presentment of the rule for discussion by the unit owners. Notice of the meeting needs to include a copy of the text of the proposed rule. The notice of special meeting should state that the purpose of the meeting is to discuss the proposed rule. Unlike other membership meetings, a quorum of unit owners is not required at this meeting unless the condominium instruments state otherwise. It is likely that a quorum is not required because the unit owners do not actually vote on the proposed rule. Instead, after the board hears the unit owners’ comments and responses to the proposed rule at the unit owners meeting, the board votes at an open board meeting on whether to adopt the proposed rule. Therefore, it is best to also include a notice of a board meeting to immediately follow the unit owners meeting so the board may immediately consider the input of the unit owners and then, after open discussion by directors at a board meeting, vote whether to adopt the rule as presented or with some minor modifications. The Act does not require that the board consider only the proposed rule as sent to the unit owners. Although no published cases have addressed the question in Illinois, it would likely pass muster that a board may make minor revisions to the proposed rule before adoption without re-noticing the rule to all the unit owners.

It has been suggested that simply construing existent prohibitions in declarations, bylaws, or rules and regulations against creating nuisances or behaving in an offensive or noxious manner may be enough to enforce mask requirements. While it is always possible that a court may uphold such an approach, it would seem unlikely that this approach will withstand challenge as to vagueness of the prohibition. A better practice would be to adopt a rule and regulation prohibiting certain conduct, i.e., using the enclosed common elements without a mask or face covering. Additionally, such a rule could require people to practice social distancing where they are in an enclosed common element for a period longer than momentarily passing by each other.

Additionally, it is questionable whether a court would find that an occupant’s refusal to wear a mask in enclosed common elements would constitute a private nuisance. “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.” [Citation omitted.] Willmschen v. Trinity Lakes Improvement Ass’n, 362 Ill.App.3d 546, 840 N.E.2d 1275, 1281 – 1282, 298 Ill.Dec. 840 (2d Dist. 2005) (reversing and remanding dismissal of private and public nuisance actions against homeowners’ association for failing to maintain lakes). With regard to public nuisances, the Cook County chancery trial court recently issued preliminary injunctions against some McDonald’s restaurants for failing to enforce certain protective measures, such as masks, social distancing, and hand sanitizers, for their employees and customers on a public nuisance theory. “The elements of a public nuisance are (1) the existence of a public right; (2) a substantial and unreasonable interference with that right by the defendants; (3) proximate cause; and (4) injury.” Massey v. McDonald’s Corp., Case No. 2020CH04247, 2020 WL 5700874 (Ill.Cir. June 24, 2020), citing Burns v. Simon Properties Group, LLP, 2013 IL App (5th) 120325, ¶6, 996 N.E.2d 1208, 375 Ill.Dec. 152. Regarding residential condominium associations, it is doubtful that a public right would be involved in using the enclosed common elements.

As a final note, association counsel should be prepared to address an argument from someone refusing to wear a mask that he or she is making a political statement regarding his or her liberty interests. As you may recall, the Illinois appellate court has recognized:

Under section 18.4(h), condominium boards must not adopt or enforce any rules that prohibit the free exercise of religion, abridge the freedom of speech, or abridge the right to peaceably assemble. . . .

* * *

[A] plaintiff states a cause of action against an association for violation of his right to free speech by alleging that the association precluded him from expressing his political opinion or that the association penalized him for expressing his opinions. Boucher v. 111 East Chestnut Condominium Ass’n, 2018 IL App (1st) 162233, ¶¶18, 20, 117 N.E.3d 1123, 427 Ill.Dec. 186.

Below is a sample form of proposed amendment to rules and regulations. It should be accompanied by notice of unit owners meeting (stating purpose of meeting) and notice of board meeting to follow immediately thereafter.

________ Condominium Association

Notice of Proposed Amendment to the Rules and Regulations

To: All Unit Owners
Dated: October 31, 2020

Please be advised that at the next unit owners meeting and board meeting, on ____, the unit owners will be invited to discuss the board’s consideration of adopting the following changes to the Association’s Rules and Regulations.

  1. A new Rule ____ is hereby adopted inserting into the Association’s Rules and Regulations the following:

Rule ____. Pandemic Protections. All unit owners, occupants of units, and their guests shall wear masks or facial coverings while walking through or otherwise using the enclosed common elements of the condominium property, including, without limitation, the hallways, elevators, and laundry rooms. At no time shall the wearing or refusal to wear a mask be considered to reflect a person’s political opinions or religious beliefs while he or she is in the property’s enclosed common elements. Additionally, in the event any unit owner, occupant, or their guests are using an enclosed common element of the property with other persons present, he or she shall exercise reasonable efforts to maintain a safe distance of approximately 6 feet from other persons to the extent practicable.

The first violation of this rule shall be addressed with a written warning from management. Thereafter, unit owners may be fined for their or their occupants, lessees, invitees, and guests’ violations of this rule with a fine of $25 per violation.

This rule has been adopted pursuant to the authority of the board to manage the operation and use of the condominium property and pursuant to the board’s responsibilities to take reasonable measures to protect the life, health, safety, or property of the unit owners and their occupants, lessees, invitees, and guests. It shall become effective upon adoption.

For more information about condominium law, see CONDOMINIUM LAW (ILLINOIS) (IICLE®, 2016). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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