## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Ripsch v. Goose Lake Ass’n , 2013 IL App (3d) 120319

Appellate Court Caption KI RK RI PSC H, Plaintiff-Appellant, v. GOOSE LAKE ASSOCIATI ON, Def endant- Appellee

.

District & N o. Third District Docke t No. 3-12-0319

Filed May 14, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) A homeowner ’s association h as t h e implied or inhere nt authority to regulate the use of common are as even when the rec orded covena nts do not expressly

grant the a ssociation that authority

.

Dec ision Under Review Appea l from the Circuit C o urt o f Grundy County
, No. 10-MR-63; the Hon. L ance R. Peterson, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Br ett R. Geig er (argued), of Malmquist & Geig er, of Morris, for appellant.

Robert J

. Russo (a

rgued), of L aw Offic es of Robert J

. Russo, of Morris, for a ppellee.

Panel J USTI CE HOLDRI DGE delivere d the judgme nt of the court, with opinion.
J ustices McDa de and Schmidt conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Does a homeowner s association have the inhere nt power to make and enfor ce rea sonable rules reg arding the use of common are as if the rec orded covena nts do not expressly grant that authority to the association ? W e find that a homeowners association does have implied or inhere nt authority

to regulate the useof common ar eas e ven whe re therec orded c ovenants do not expressly

grant the a

uthority to regulate the c ommon area s. ¶ 2 The plaintiff, Kirk Ripsch (Ripsch), appea ls from a judgme nt o f t h e ci rcuit court of Grundy County denying his pe tition for declar atory judgme nt f ollowing a stipulated bench trial. In his petition, the plaintiff soug ht to enjoin the defe ndant, Goose L ake Association (the Association), from enfor cing a rule prohibiting the use of Tritoon boats on the lake. Tritoon boats are larg e pontoon boats which res t on three pontoons rathe r than the usual two pontoons. Ripsch maintains that the Association has no authority to establish rules g overning the use of the lake since the rec orded covena nts contain no authorization grantin g t he As s o ci at ion any rule making authority

. The Association maintains that it has implic i t authority to regulate the use of the lake as common proper ty , subject only to the require ment that its reg

ulations be rea sonable. For the following rea sons, we aff irm the order of the circ uit
court.

¶ 3 BA CKGROUND ¶ 4 Ripsch owns a si ng le-fa mily residenc e on a pa

rce l which abuts a body

of water known

as L incoln L ake; howeve r, he does not own any part of L incoln L ake. Ripsch purcha sed the
proper ty on J une 23, 1979. By virtue of his purcha se, Ripsch beca me a member of the Goose L ake Association. The Association is a common interest community comprised of homeowner s living o n o r adjacent to Goose L ake, Be aver L ake, Half Moon L ake, and L incoln L ake in Gr

undy County

. The lakes, including L incoln L ake, appea r to be common

are as controlled by

the Association. Only proper ty owner s are members of the Association and enjoy the privileg e of attending membership meeting s and voting for members of t he Association’s boar d of direc tors.

-2-¶ 5 At the time that Ripsch purcha sed his pr operty , the only rec orded document containing

restric tions on his use of the proper ty was a document title d “P ro t ec tive Covenants and Restrictions” rec orded August 17, 1971. The document, only two pag es in leng th, contained a list of g ener al re strictions on the use of e ach property owner ’s own land. Only one of the listed restric tions addre ssed the use of the lake: “9. No boat pier may extend more than two (2) fee t into the water s of the lake.” The documen t al s o s t at ed: “10. Eac h proper ty owner become s an Associate Member of the Go o s e L ake Association upon purcha se and shall maintain said membership by pay ment of an an n u al maintenanc e charg e, not to exceed $25.00, unless said maintenanc e charg e is incre ased by a vote of the members and associate members of

the Association.” ¶ 6 The Association enac ted and publ i s h ed a set of bylaws as require d by the Genera l Not For Profit C o rp o ra tion Act of 1986. 805 I L CS 105/102.25 (West 2010). Although these bylaws wer e published to the membership and periodica lly updated, the bylaws and subsequent amendments wer e never rec orded. At the time Ripsch purcha sed his proper ty , he

was provided a copy of the bylaws and the Association rules in eff ect on the d at e o f purcha se. The rec ord contains a copy of the b y l aw s d ated September 16, 2006. Article I I
, section XIV, of the bylaws provided that “all members are bound by the curr ent Goose L ake Association Rules.” At various times during Ripsch’s membership in the Association, the board of direc tors promulg ated and published to the membership cer tain rules purporting to regulate activities on the lakes and other common are as. These rules addre ssed such activities

as fishing, swimming, boating
, camping
, and guest usag e. The stated purpose of these rules

was to promote safe ty on the lakes and water way s and in the comm u n i ty , p re v ent overfishing and crowding on the water, and provide an overa ll order to the us e o f t h e l ak e and other c ommon area s. ¶ 7 Sometime during Dec ember 2007, the Association amende d its rules to prohibit the use of pontoon boats with more than two pontoons on L incoln L ake. When Ripsch was informed of the rule limit ing pontoon boats on L incoln L ake, he informed the Association’s direc tors that he intended to use a Tritoon boat (a boat with three pontoons) on L incol n L ak e. The Association responde d that it would enfor ce its rules through fines and/or expuls ion from the lake. The instant lit igation ensued. ¶ 8 Following a hearing, the trial court ruled in favor of the Association. The court observe d that no I llinois prec edent exis ted to answer th e s p ecif ic question raised by the instant litigation, i.e.
, whether a homeowner s association’s rules and regulations reg arding the use of common proper

ty must be contained in rec orded covena nts in order to be enfor cea

ble. The court, sua sponte , looked t o the R es t at em ent (Third) of P roper ty : Servitudes. S pecif

ically
, comment b of section 6.7 of the R es t at ement provides that “[e]ven in the absenc e of an express grant of auth o ri t y , an association enjoy s an implied power to make rules in further ance of its power over the common proper ty .” Fur ther, the trial court observe d that the Restatement stated that “[e]x ce p t as l i mited by statute or the g overning documents, a common-intere st community has an implied power to adopt rea sonable rules to *** g overn the use of common proper ty .” Restatement (Third) of Prop.: Ser vitudes § 6.7(1)( a) (2000). The trial court noted that the Restatement is not binding on I llinois courts but has been found to be persua sive. The c ourt held that, under the ana ly sis articulated in the Restatement, the

-3-fac ts in the instant matter established that the Association enac ted the rule limit ing the siz e

of pontoon boats on L incoln L ake in its authority to impose rea sonable restric tions on the use of c o m mon proper

ty

. The court held t hat R ipsch had not challeng ed the rea sonablene ss of the rule, but only the Association’s power to adopt it. The court held that the Association had the implicit power to ena ct the rule . Ripsch brought this appeal.

¶ 9 ANALYSI S ¶ 10 At issue is whether the Association may enforce a rule adopted by its board of direc tors which placed a limi tation upon an owner ’s use of the common proper ty

. Ripsch maintains that, under I llinois law, a homeowner s association may not restrict the use of any proper ty unless the restric tion is expressly contained in the rec orded decla rations and bylaws. He cites Krueger v. Oberto
, 309 I ll. App. 3d 358, 369 (1999), for the proposition that a restric tion
upon the use of proper

ty must be rec orded and made a part of the chain of title to the proper ty i n o rd er to be enforced. He further maintains that any rec orded restric tion on the u s e o f
proper ty rec orded afte r the convey ance of that proper

ty is no t b i n d i n g upon the grante e. Cimino v. Dill
, 92 I ll. App. 3d 345, 349 (1980). As the matter involves the interpre tation of the languag e of the restric tive covena nts and the statutory

authority of the Assoc iation, we will revie w t he decision of the ci rc u i t court de novo

. Sadler v. C reek mur , 354 I ll. App. 3d 1029, 1036 (2004). ¶ 11 Be fore addre ssing the i s s u e prese nted by the parties, we must point out that the re cord fails to establish who holds title to L incoln L ake. Ripsch acknow ledg es that he does not have

an owner ship interest in the lake. He questions, howeve r, whether the Association holds title
to the lake. The Association, on the other hand, assumes that it holds title but has offe red no evidentiar y proof of that fac t. Our revie w of the rec ord leads us to conclude that the issue of who held title to the lake was never addre ssed by the trial court, and it appea rs that the trial court, and the parties, operated under an assumption that the Association held title, or at least

was authorized to act on b eh alf of the titleholders. I f the rec ord had established that the Ass o ciation held title to the lake, this matter could have been easily resolved. I f the Association holds title to the lake, then Ripsch’s right to enter onto the lake would be only that of an invitee and woul d b e s ub j ect to any terms and conditions imposed by the landowner

. Rodriquez v. Norfolk &W estern Ry . Co. , 228 I ll. App. 3d 1024, 1038 (1992). ¶ 12 Ripsch argued on appea l that he possessed riparia n rights to rea sonable use of the surfa ce of the lake. Riparian rights which allow an adjac ent landowner to have rea sonable use of the surfa ce of a nonnavig able lake require that the par ty asser ting riparian rights own at least a portion of the lake bed. Alderson v. Fatlan
, 231 I ll. 2d 311, 319 (2008). Her e, Ripsch claims

no owner ship of any portion of the l ak e bed. There fore
, he has no riparia n rights to the surfa ce of the lake. Id. ¶ 13 Be cause the rec ord is unclea r as to who holds title to L ake L incoln, and the trial court’ s ruling rests upon a presumption that the Association is either the titleholder or is empower ed
to act on behalf of the titleholder, we fi n d t h at t he rec ord allows us to presume that the Association was a ctingwith appar ent authority to enac t that finding. ¶ 14 Having addre ssed the issue of owner ship of L incoln L ake, we n o w ad dre s s R ipsch’s

-4-argument that the Association could not enfor ce rules reg arding the use of the lake that wer e

not specific ally stated in the rec orded covena nts. Ripsch beg ins by arguing that all covena nts should be s t ri ct l y co n s trued in favor of full and unlimit ed use of proper ty by the proper

ty

owner

. W estfield Homes, Inc. v. Herrick
, 229 I ll. App. 3d 4 4 5 (1 992). Additionally
, he maintains that restric tions ag ainst the fre e use of proper ty are g ener ally not favor ed. Hartman v. W ells , 257 I ll. 167 (1912). Applying the se two g ener al principles, Ripsch maintains that the Association could not enfor ce the restric tion ag ainst Tritoon boats on L incoln L ake. To do so, he maintains, would limit his fre e use of the lake and impose a restric tion upon his use of the lake that was not specific ally expressed in the rec orded covena nts that ran wi t h his
parc el. ¶ 15 The Association points out, howeve r, that W estfi el d an d Ha r tma n ea ch ad dre ssed

re strictions upon the use by a lot owner of his own lot and did not addre ss rea s o n ab l e restric tions upon the use of common property

. The Associatio n maintains that this distinction is cruc ial. We point out that, as a g ener al rule, a board o f d i rec tors of a common interest community has broad power s to enac t rules g overning the day-to-day operations of the association. Board of

Directors of 175 East Delaware Place Homeowne rs Ass’n v. Hinojosa
, 287 I ll. App. 3d 886, 890 (1997). I f the Associa t i o n attempted to limit Ripsch’s use of his

own land, supposedly for some common g ood, then it would be preve nted from doing so by the holdings in W

estfield and Hartman

. At issue here
, howeve r, is whether the Association has the authority to impose rules re s t ri cting the use of common proper ty

. Ripsch cites no authority in support of the proposition that the Association may not impose any restric tions
upon the use of common propert y other than those expressly provided in the rec orded documents runningwith the land. ¶ 16 Ripsch sug g ests that Lake B a r r i n g t o n Shore Condominium Ten Homeowne rs Ass’n v. May
, 196 I ll. App. 3d 2 8 0 (1990), supports his argument. We note, howeve r, that Lake Barrington does not addre ss the distinction betwee n private and common are as that is cruc ial
to this case

. Rather, it addre ssed only the issue of whether an alleg ed encr oachme nt into the

common are a could be enjoined wher e the Association failed to establish an encr oachme nt

occur red. In Lak

e Barrington
, a homeowner s association soug ht to enjoin a member from building a wooden deck that was larg er than the 10-foot-squa re patio that exis ted at the time the individual owner p u rchased his unit. The circ uit court denied the injunction, and the appellate court aff

irmed that ruling

. The court held that the orig inal patio was, itself, common proper ty , although it was a limit ed common element rese rved for the exclusive use of the unit

owner whose proper

ty adjoined the patio. Id. at 282. The court held that, since the patio was itself a common element, its expansion could not be considere d an impermissible

encr oachme nt upon the common are a, absent some evidenc e tending to establish that the boundary of the orig inal patio was intended as a limit ation o n t h e s i z e o f the “limited

commo n el em ents.” Id. at 283. The court noted that the homeowner s association failed to prese nt such evidenc e and denied its reque st for an injunction. Id. It is interesting to note that the court decide d the case on the lack of evidenc e in the rec orded documents establishing the dimensions of the limit ed common are a; howeve r, i t h eld that “[t] he rule of strict construction in favo r o f t h e free use of proper ty will not be applied to defe at the obvious purpose of

a re striction, even if [that purpose is] not precisely expressed.” Id.

-5-¶ 17 Whil e there is no I llinois decision supporti ng Ripsch’s proposition that a homeowne rs

association cannot enfor ce rules g overning the use of common are as unless those rules wer e

rec orded and ran with the land prior to a grante e’s acquisition of the proper ty , neither is there

case law direc tly supporting the Association’s argument that a homeowner s association has implicit authority to place rea sonable restric tions on the use of the common are as. The trial
court noted the lack of I llinois authority on this issue and consulted the Restatement (Third) of Prop.: Servitudes. Restatements are no t b i n d ing upon I llinois courts unless they are specific ally adopted by our supreme court. Tils chner v. Spangler
, 409 I ll. App. 3d 988, 933 (2011). We find the Restatement to be per suasive on this issue. ¶ 18 The Restatement points out t h at , un l i k e i n d i vidually owned proper ty , an assoc iation enjoy s an i mp l ied power to make rules in further ance of its authority and control over the

co mmon proper

ty

. The comments to the R estateme nt further note t hat an “assoc iat i o n h as

no inhere nt power to regulate use of the individually owned proper ties in the community
, howeve r, except as implied by its responsibility for manag ement of the common proper ty .” Restatement (Th i rd ) o f Prop.: Servitudes § 6.7, cmt. b (2000). Thus, the draf ters of the Restatement make clea

r that wher e t h e h o meowner s association has the responsibility of administering the common proper ty for the common g ood of the members, it must have the implicit power to make rea sonable regulations reg arding the use of the common proper ty

. To hold otherwise would be to adopt t he absurd conclusion that the a ssociation was g iven the responsibility of caring for the common property but was g iven no authority to control the

use of that proper

ty

. Her e, Ripsch would have a court hold that no regulations could ever be imposed on the use of L incoln L ake other than the express limit ation that “no boat pier may extend more th an t wo (2) fee t into the water s of the lake.” The proposition that the Association could not promulg ate rea sonable regu l at i o n s t o control the use of common proper ty would be an absurdity

. It is a well-settled principle that statutory languag e should
not be construed to produce an absurd result. Vincent v. Departme nt of Human Servic es , 392 I ll. App. 3d 88, 98 (2009) (Mc Dade , J ., specia lly concur ring ). ¶ 19 We note that our holding does not leave individual proper ty owner s, such as Ripsch, w ith

no means to challeng e a homeowner s association’s rules reg arding use of common proper ty

. As the Association points out in the instant case , Ripsch was on notice that the Association

wo u l d exert authority over the common proper ty on behalf of all the owner s. As an Associati o n m em b er, he would have been able to challeng e the rea sonablene ss of those
regulations. As the circ uit court noted, howeve r, Ripsch did not challeng e the rea sonablene ss of the rule ag ainst Tritoon boats. Thus, he conce ded that the regulation ag ainst pontoon boats with more than two pontoons was r easona ble.

¶ 20 CONCLUSI ON ¶ 21 For the fore g oing rea sons, t h e j u d gm en t o f t he circ uit court of Grundy County is aff irmed.

¶ 22 Affir

med.

-6-