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.
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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.