A recent order from the City of Chicago Commissioner of Health has given a big boost to Chicago condominium associations seeking to enforce mark usage within the association common elements. The Executive Order (full text here) effectively expands the required use of masks to not only public places but also within the common or shared spaces of residential multi-unit buildings.
The Executive Order was revised to include the following:
any individual who is over age two and able to medically tolerate a mask shall be required to wear a mask when in a public place, which for purposes of this Order includes any common or shared space in: (1) a residential multi-unit building or (2) any non-residential building, unless otherwise provided for in the Phase IV: Gradually Resume guidelines promulgated by the Office of the Mayor (“Gradually Resume Guidelines”);
Previously, it was our firm’s position that requiring individuals to wear masks within the common elements under threat of fine from the association could be done only if the board adopted a rule. However, the recent Executive Order changes things. Most condominium association declarations contain a provision that prohibits any person from engaging in activity within the common elements “in violation of any law.” It is our opinion that a board may consider a clear violation of the City of Chicago’s mask mandate within common elements a violation of the law, and thus is within its discretion to issue a notice of violation related to the failure or refusal to wear a mask without a specific association rule in place.
The board should consult with its legal counsel before taking any action to levy fines or fees against a person failing or refusing to wear a mask. There are myriad circumstances to consider with each such occurrence, and this remains an evolving issue. We strongly recommend any board or manager to contact Altus Legal to discuss options.