Q. My neighbor, who is a global VP of a large company, is not home a lot. This summer, it was quite hot, and being an athletic person he went out for a long run. There are only two entrances to our condo building: the front door and walking around the building to the garage. He walked in the front door in his running shorts (to his knees) and running shoes, and had taken off his shirt. The management company operates surveillance cameras throughout the building. This gentleman leases the condo from a married couple who have never lived in the condo. However, they received a letter from the management company that they would be fined because of their tenant not being properly attired. There are other rules regarding types of clothing allowed in our own hallways; three floors and eight units per floor. What is going on?
—Is He Decent?
A. “As a starting point,” says attorney James A. Erwin of the Chicago firm Erwin Law, LLC, “owners must always remain cognizant that a condominium association has every right to hold owners liable for rule violations committed by their tenants. In doing so, however, the association remains subject to the same restrictions and limitations and duties which apply when enforcing the rules of the association in the case of a violation committed by the owner. In other words, in Illinois, the rules must be reasonable, consistent with the Illinois Condominium Property Act, and uniformly enforced. Additionally, the association must give due process—i.e., notice of the violation, and an opportunity for the owner to be heard on the matter.
“While the determination of whether a particular rule enforcement action is valid or not comes down to a case-by-case analysis of the facts, the condominium association in your simple fact summary would appear to be skating on thin ice. Attempting to regulate the type of clothing worn by owners, residents, or visitors to the association is difficult to do without running afoul of any number of federal and state laws such as anti-discrimination statutes. What amounts to proper attire can be a very subjective matter and it would likely be extremely difficult for the association to survive scrutiny for both reasonableness and uniformity of enforcement. If the lack of clothing (not wearing his shirt) was the cause of the warning from the management company, then it is possible that the rule could be found to be reasonable, but only if it is drafted in such a way as to be unambiguous and is limited to that conduct which would reasonably be found by a court to be offensive and in the best interests of the association to restrict—such as nudity in common areas.”