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posted: 11/21/2020 7:00 AM

Face coverings can be mandated in common areas

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Q: Many owners in our condominium association have expressed a concern about the surge in cases of COVID-19 in Illinois. To date, the board has posted signs reminding people about wearing face coverings and social distancing in the building. However, too many residents are ignoring these "polite" reminders. Can the board of our association levy a fine if a resident does not wear a face covering in the common elements?

A: The face covering requirements (when social distancing cannot be maintained) in the governor's COVID-19 executive orders is "law." This would generally require people to wear a face covering in the common elements inside the building.

The typical condominium declaration includes language to the effect that no one shall do anything in the common elements "which would be a violation of any law." Similarly, common language in a declaration prohibits people from engaging in "noxious or offensive conduct" in the common elements. Failure to follow the governor's executive orders arguably constitutes a violation of these types of provisions in a declaration.

Some associations are going a step further and adopting specific rules that mirror the face covering requirements of the governor's order.

A violation of the declaration as a result of noncompliance of the state's face covering mandate, or of a rule addressing face coverings, would permit the board to levy a fine for a violation. Many associations are aggressively dealing with residents' failure to comply with face covering requirements through this process.

Q: The board of our condominium association is undertaking a project to review our declaration, with an eye toward having it amended. Is there any sort of checklist of issues we can consider?

A: There isn't really any sort of checklist a board can use in reviewing its declaration for this purpose. This is because there really isn't any one-size-fits-all approach. Rather, amendments are typically driven by specific issues that a board faces that are not dealt with in the declaration in a manner the board deems appropriate. That said, the most common amendments address use and occupancy issues. Examples of common amendments address issues like leasing, pets, tobacco/cannabis, the number of board members, and types of flooring in units. But again, no two associations necessarily face the same issues, so it's really a matter of what works and what doesn't work in a particular association's declaration, based on that association's actual day-to-day experiences.

Related to the review the board is undertaking, the board should also consider whether the declaration should be updated to conform to the current provisions of the Condominium Property Act. The board of a common interest community association could engage in a similar undertaking, with respect to conformity of its declaration to the Common Interest Community Association Act.

Q: Each townhouse-style condominium unit in our association has a limited common element patio. The use of portable wood burning fire pits on these patios has become very popular in the stay-at-home COVID-19 era. However, we have received numerous reports from concerned residents that the hot embers from these fire pits float and blow precariously close to the combustible exterior of the building. Can the board adopt a rule to restrict the use of these fire pits?

A: The board of the association has the authority to adopt and amend rules and regulations covering the details of the operation and use of the property. As such, the board could adopt rules regarding the use of fire pits. Some associations permit wood burning fire pits, as long as they are placed a certain prescribed distance from the building. Some associations prohibit wood burning fire pits altogether, and only allow propane gas fire pits. The local ordinances where the association is located should be reviewed to see if they provide any guidance as well.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.