Q: I’m on the board of directors of my condominium building, and we are considering adoption of a rule requiring masks to be worn in the indoor common elements of the development, for example, the lobby, hallways and elevators.
We have a few folks who will probably be upset by this, so we want to ensure that we are on solid legal footing.
What do you think?
A: It is likely that your condominium Bylaws contain a provision prohibiting unlawful activity.
Although there has been a good deal of confusion regarding the enforceability of the governor’s executive orders regarding masks in light of a recent Michigan Supreme Court ruling, the Michigan Department of Health and Human Services (MDHHS) has also issued requirements that largely mirror the executive orders.
This means that a violation of those MDHHS requirements is a violation of your Bylaws.
MDHHS currently requires masks to be worn when people from multiple households are in a shared space in a group of two or more.
This would include the shared space of condominium common elements.
And by the way, be sure to keep yourself apprised of current limits on indoor and outdoor gatherings established by MDHHS, which may affect your plans for in-person meetings of members.
Please note that it may even be argued that you not only have the ability to enforce a mask requirement in the common elements but that you also have an affirmative duty to enforce it.
If you are aware of unlawful activity occurring in the common elements and do nothing about it, you risk a lawsuit from co-owners who may reasonably believe that you are failing to enforce the Bylaws and failing to take reasonable measures to protect their health and safety.
Regarding penalties for noncompliance, be sure to consult with your community association attorney about what would be best for your particular association.
With many kinds of violations, it may be preferable to seek a court injunction to ensure that the violation is corrected, but that might not be preferable in this case.
Instead, your attorney may recommend a warning letter with ensuing fines in escalating amounts, and if that is not successful, you might consider pursuing a restraining order.
Keep in mind that these requirements will likely be modified further in response to how the pandemic intensifies or abates in the future, so be sure to consult your experienced community association attorney on this issue and keep them on speed dial for guidance.