More and more apartment owners and managers are considering mandating the wearing of masks for residents, guests, and others in common areas of apartment communities. While such a policy makes good sense from a public health perspective, it cannot be implemented arbitrarily or on an ad hoc basis. Even federally assisted properties such as HUD or Rural Development are allowed to require residents to wear face coverings at the property and may treat a resident’s failure to do so as a lease violation – as long as modifications to the lease or property policies have been made.
While no property is required to have policies outside the actual lease itself, it is a good idea to do so. But, such policies must be attached as a lease addendum and should be maintained in the file of each resident. These policies generally outline specific conduct required of all residents, in more detail than would generally be in the lease itself. Typical items in property policies include issues relating to safety, noise, pest management, pet rules, car washing, security, and trash disposal.
House rules relating to face coverings should be reasonable and consistent with state and local law as well as public health guidance.
The latest HUD update to its COVID-19 guidance says changes to property policies – or “house rules” as HUD calls such policies – may be sent to the local HUD office or Performance-Based Contract Administrator (PBCA) for review. While approval of these policies is not something that normally must be sought from HUD or the PBCA, they can guide whether the proposed rule violates any HUD statutory, regulatory, or programmatic requirements.
At HUD properties, owners and agents (O/As) must notify existing tenants, who have completed their initial lease terms, of modifications to house rules 30 days prior to implementation. Tenants who have not yet completed their initial lease terms must be notified 60 days prior to the end of their lease (see HUD Notice H2012-22).
Failure to comply with a site’s face covering requirements may be treated as a lease violation only if the policy is reasonable and consistent with state and local law and directives. Also, the house rules must be identified in the lease as an addendum or attachment to the lease.
While the wearing of face masks may be mandated, there are several requirements that may not be made of residents. For example, owners may not require tenants to take a health or medical test and disclose results. Landlords may certainly encourage, but not require, tenants, to get testing and disclose the results.
From a public health perspective, there is little doubt that the wearing of face masks assists in preventing the spread of COVID-19, and requiring it in common areas of apartment communities is sound policy. But, as noted here, it must be done according to state and local law, and for HUD properties, following HUD guidelines.