With shelter-in-place orders extended, association boards are in a unique situation of responding to non-compliance issues — often left wondering about their role in enforcing mask-wearing and social distancing rules.
Last month, Fischel Kahn’s Mark Rosenbaum outlined actions association boards should take when an occupant has COVID, but many boards now face later-stage concerns, including conveying the need for face masks and social-distancing, as well as attempts to enforce these guidelines.
How can an association board best respond for the safety of its owners and occupants? Here are four important considerations:
Can Use of Required Protection be Enforced?
Board resolutions or policies are NOT rules and cannot be enforced the same way rules are. It is likely no association had pandemic rules in place (or anything pandemic-related in its declaration or bylaws) prior to COVID. Even now, very few associations have actually gone through the formal procedures, which can vary between condos and common interest community (townhome) associations, to adopt specific rules to address conduct related to COVID.
However, most associations do have a built-in vehicle for addressing these situations as part of its declaration: a catch-all provision prohibiting “nuisances” or “annoyances” on the association’s property. A violation of state or local governmental orders can almost certainly be considered a nuisance or annoyance to the other owners and occupants in the association.
Where Can the Board Enforce Protections Against COVID?
The board has primary control over what happens in its common elements/common areas (“common areas”) such as lobbies, hallways, stairways, elevators and laundry areas. Many boards have implemented mask and social distancing procedures for delivery people, maintenance workers and other visitors in their common areas.
If an association has outdoor common areas in which people may be in close proximity – even areas such as porches, balconies or decks that are used exclusively by a small number of owners – boards should remind occupants of the need for facemasks and social distancing via on-site signage and other communications. If an association has private streets, walkways or recreational facilities, similar communications should be distributed to those using these areas.
How Can a Board Approach Violations?
Association size makes a difference in how boards should respond to violations. For instance, a 10-unit association with no known COVID cases has probably governed itself differently in these last few months than a 300-unit association.
In smaller associations, informally reminding occupants to wear a facemask and maintain social distancing in common areas may be enough, without the need for formal enforcement through fines.
In larger associations with more people coming and going and an increased likelihood of COVID, many boards have been taking a harder line: Failure to wear a mask or maintain social distancing has resulted in stricter enforcement, including fines.
Who Should Enforce Compliance?
Owners and occupants should bring complaints about violations to the board. Boards should discourage vigilante efforts to enforce compliance, particularly from owners and occupants who roam common areas in search of violations.
Signage and enforcement by persons recognizable as representing the association, such as board members, or on-site staff such as a doorperson or maintenance person, are typically a better, less antagonizing way of handling persons ignoring governmental orders or board directives.
Mark Rosenbaum has represented condominium and common interest community (townhome) associations for more than 35 years. He advises associations on all legal issues relating to association living, from formation to day-to-day operations.