Can my apartment building force us to wear masks?

[MiesV]

Jurisdiction

New York

I was wondering if our apartment building can legally force us to wear masks? Currently in New York City there are no city mandates and no statewide mandates to wear masks in apartment buildings. However our building has taken it upon themselves to initiate a new mask mandate effective today and said it is "mandatory". I understood before when they had the state/city mandate behind them but this time they're acting on their own. Is this allowed legally, to be able to force residents to wear masks? Help.

Note: This is not a Co-Op or Condo building, it is a regular high-rise apartment building with about 800 units.

 

[Tax Counsel]

Is this allowed legally, to be able to force residents to wear masks? Help.

That depends a great deal on what the lease says, and of course I've not read the lease. At the very least, though, if you don't comply the landlord might have reason to refuse to renew the lease when it's due to expire.

 

[MiesV]

That depends a great deal on what the lease says

Really? So there is an actual scenario where a building owner can force tenants to wear masks? Even when it has not been mandated by any local agency or authority?

 

[Red Kayak]

Really? So there is an actual scenario where a building owner can force tenants to wear masks? Even when it has not been mandated by any local agency or authority?

No one is "forcing" you, there are just threatened consequences for not complying. Whether the landlord enforcing such consequences is legal depends on what the consequences are and the wording of your lease.

 

[justblue]

I was wondering if our apartment building can legally force us to wear masks? Currently in New York City there are no city mandates and no statewide mandates to wear masks in apartment buildings. However our building has taken it upon themselves to initiate a new mask mandate effective today and said it is "mandatory". I understood before when they had the state/city mandate behind them but this time they're acting on their own. Is this allowed legally, to be able to force residents to wear masks? Help.

Note: This is not a Co-Op or Condo building, it is a regular high-rise apartment building with about 800 units.

Please clarify: Are they stating that you must wear a mask only in common areas of the building, such as the elevator, laundry room and halls?

 

[Tax Counsel]

Really? So there is an actual scenario where a building owner can force tenants to wear masks?

Certainly. It's not unlike your boss making you wear a mask at work even if no law requires it. If you don't like it, you quit or your boss fires you when you show up not wearing a mask. The landlord is a constrained a bit more by the lease, but the same kind of principle applies here, too. If the lease states that the landlord can make rules for the health and safety of tenants, then you've agreed to that and not wearing a mask would violate your lease. And again, your landlord may be able to terminate your tenancy over the mask issue once any lease you do have expires even without that kind of provision in the lease. That would be true in the vast majority of places in the US. Perhaps though NYC's rent control laws would offer you some protection against that.

 

[MiesV]

Please clarify: Are they stating that you must wear a mask only in common areas of the building, such as the elevator, laundry room and halls?

Yes in the common areas. I actually don't have a problem wearing it, I am more curious though about whether it's legal for them to be able to tell me to wear it vs. asking me.

 

[MiesV]

Certainly. It's not unlike your boss making you wear a mask at work even if no law requires it. If you don't like it, you quit or your boss fires you when you show up not wearing a mask. The landlord is a constrained a bit more by the lease, but the same kind of principle applies here, too. If the lease states that the landlord can make rules for the health and safety of tenants, then you've agreed to that and not wearing a mask would violate your lease. And again, your landlord may be able to terminate your tenancy over the mask issue once any lease you do have expires even without that kind of provision in the lease. That would be true in the vast majority of places in the US. Perhaps though NYC's rent control laws would offer you some protection against that.

But wouldn't the landlord have to base his mandate on a city or state or other governing authority mandating such an action? I mean by this argument couldn't a landlord require that everyone wear gloves during cold and flu season? Since when is a landlord the authority on health and safety of the tenants?

 

[MiesV]

there are just threatened consequences for not complying

I would argue that threatening to evict a tenant that doesn't comply is pretty much the same as forcing them.

 

[adjusterjack]

But wouldn't the landlord have to base his mandate on a city or state or other governing authority mandating such an action?

Have to? No.

I mean by this argument couldn't a landlord require that everyone wear gloves during cold and flu season?

In the abstract, yes. He can mandate anything that he is not prohibited by law to mandate.

Since when is a landlord the authority on health and safety of the tenants?

Since the moment he said he became an authority.

 

[MiesV]

This is the only clause in the lease that mentioned anything about health or safety. I guess the part where it says "violation of health" would have to be determined - can it in fact be determined that not wearing a mask is a "violation of health"? Who determines that? Is it up to the CDC? The landlord? The President? Congress? Supreme Court? Hmmm...this should be interesting.

 

[MiesV]

If the lease states that the landlord can make rules for the health and safety of tenants, then you've agreed to that and not wearing a mask would violate your lease.

The lease doesn't say the landlord "can make rules for the health and safety of tenants", it says if there is a "violation of health and safety laws". There are no laws in New York saying you have to wear mask.

 

[adjusterjack]

The lease doesn't say the landlord "can make rules for the health and safety of tenants", it says if there is a "violation of health and safety laws". There are no laws in New York saying you have to wear mask.

You make much use of the word "can."

The word "can" denotes the ability to do something, not whether it's done rightly or wrongly.

The landlord "can" mandate the use of masks in the common areas.

You "can" choose to disobey the mandate.

The landlord "can" choose to terminate your tenancy or evict you.

You "can" go to court and defend yourself.

The judge "can" decide to uphold, or strike down, the mandate after reviewing the lease, the statutes, and common law.

 

[cbg]

But wouldn't the landlord have to base his mandate on a city or state or other governing authority mandating such an action?

Not at all. Why do you think so?

Why is this any different from your telling people they can't smoke in your home?

 

[army judge]

I was wondering if our apartment building can legally force us to wear masks?

LOL, no, an inanimate object such as a "building" has no brain, isn't alive, so how can IT tell you anything, even hello?

However, the owner of the building can certainly require her/his tenants to imitate Jessie James.

That said, you can litigate the building owner's mandate before a judge.

Perhaps you could organize like minded tenants and hire a lawyer to protect your rights.

What rights?

Anything for which you feel aggrieved.

Otherwise, imitate Jessie James and all would be well.

 

[Tax Counsel]

But wouldn't the landlord have to base his mandate on a city or state or other governing authority mandating such an action?

No. If the lease allows for it, the landlord can require it. If the lease does not allow for it, then the landlord can insist on adding that provision when your lease next comes up for renewal, and if you don't agree, the landlord can refuse to renew the lease. Finally, even if the lease does not give your landlord that right and you wear the mask anyway, the landlord can in most places in this country then refuse to renew the lease when that time comes since in most places the landlord needs no cause to do that. As I said, perhaps NYC's rent control laws include some measure of protection for you. You can ask a NYC lawyer about that, I've not researched it. But most places in this country don't regulate housing nearly as much as places like New York, SF, and LA do.

 

[adjusterjack]

The lease doesn't say the landlord "can make rules for the health and safety of tenants", it says if there is a "violation of health and safety laws". There are no laws in New York saying you have to wear mask.

Here is the NY Rent Stabilization Code. If you are in a rent stabilized building, read the code and see if there are any limitation on the LL's ability to terminate or evict.

Rent Stabilization Code (tenant.net)

 

[Michael Wechsler]

We have COVID-19 mask mandate issues in my building. Regardless of whether the building is a co-op, condo or rental, nobody is likely to give you any firm opinion as to the legality of mask mandates until a court actually rules on such a case. I have heard the opinions of several landlord tenant attorneys, managing agents and board of directors and I'll sum them up as follows - including a court decision.

Should the CDC or other recognized governmental authority mandate mask wearing, buildings may impose the same, which usually relates to mask wearing within common areas. Every building I am aware of near me in New York City imposed them and some issued a fine for non-compliance. The issue of enforceability is another issue, which may receive determination at the time of sale of the unit, since transfer may be limited without all fines being settled. If you're in a rental building you face a much more challenging time fighting such a mandate since you don't have the rights of a shareholder, only those contained in your lease. At this point, I'm assuming that many real estate attorneys have become savvy to the notion that they may need to include clauses that related to pandemic conditions in the lease terms. But let's get right to the mask mandate enforceability issue in court.

19 India Fee Owner LLC v. Miller: Index No. 503704/2021; 2021 NY Slip Op 30816(U) (Sup. Ct. Kings; 3/11/21; Joseph, J)

Issue: Landlord sought a temporary injunction and restraining order against a tenant.

Relevant excerpts of the opinion:

The landlord claimed that the tenant violated his lease and building rules because he: (1) refused to wear a mask over his nose and mouth or socially distance in common areas and the gym; (2) allowed his dog to run "off leash"; and (3) regularly caused marijuana smoke to emanate from his apartment. The landlord submitted copies of the lease agreements, multiple photos showing COVID-19-related signs posted throughout common areas, and affidavits from staff members and the tenant living in the apartment directly beneath the problem tenant.

The senior manager of the building stated that the tenant was routinely observed in common areas, including the gym, without a mask covering his nose and mouth despite signage related to COVID-19 safety precautions that was posted throughout the building. The manager further stated that he had received multiple complaints about the tenants' large dog, which the tenant allowed to roam about the premises without a leash. According to the manager, other tenants had also complained about marijuana smoke emanating from the tenant's apartment into the hallways. He also stated that the tenant's conduct was the reason several of the residents asked for early termination of their leases.

...

Here, plaintiff submitted sufficient evidence to demonstrate that it has a likelihood of success on the merits of its claim for a judgment declaring that the defendant has breached provisions of the lease agreements. As summarized above, there are multiple accounts from individuals with personal knowledge of the defendant's refusal to wear a mask in common areas, allowing his dog to roam without a leash, and smoking. The wearing of a mask or face covering is required under Section 66-3.2(a) of Title 10 of the New York City Rules and Regulations law, and, under Section 11(A) of the Lease. The defendant, upon signing the lease documents, agreed to comply with all present and future city, state and federal laws and regulations. Additionally, as provided in the supplemental Rules documents and Riders to the lease, the defendant agreed that he would obey gym usage rules, leash his dog, and not smoke in the building, including in his apartment.

The irreparable injury component is self-explanatory under the circumstances of this case. Plaintiff, as landlord and owner of the building, is contractually and statutorily obligated to provide habitable housing not only to the defendant, but each resident in the building. Moreover, the defendant's conduct, which involves allowing his dog to roam off-leash and his alleged refusal to comply with COVID-19 safety measures, poses an imminent threat to the safety and well being of individuals in or about the premises.

Furthermore, the court finds that a balancing of the equities militate in favor of enjoining the defendant from violating the lease agreements and Section 66-3.2(A) of Title 10 of the New York City Rules and Regulations law. The risk of irreparable injury to the plaintiff, as landlord and owner of the building, staff, tenants and visitors on the subject property, outweigh the imposition of an injunction and temporary restraining order that merely requires the defendant to comply with his contractual obligations.

Based upon the foregoing, the instant application is granted, on default, to the extent provided herein, that a temporary restraining order is granted in favor of plaintiff, 19 India Fee Owner LLC, and against defendant, Terrell Miller.