ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

KIRK RIPSCH, Plaintiff-Appellant, v. GOOSE LAKE ASSOCIATION,

Defendant-Appellee.

 District & No. Third District

Docket No. 3-12-0319

Filed May 14, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

A homeowner’s association has the implied or inherent authority to

regulate the use of common areas even when the recorded covenants do

not expressly grant the association that authority.

Decision Under 

Review

Appeal from the Circuit Court of Grundy County, No. 10-MR-63; the

Hon. Lance R. Peterson, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Brett R. Geiger (argued), of Malmquist & Geiger, of Morris, for

appellant.

Robert J. Russo (argued), of Law Offices of Robert J. Russo, of Morris,

for appellee.

Panel JUSTICE HOLDRIDGE delivered the judgment of the court, with

opinion.

Justices McDade and Schmidt concurred in the judgment and opinion.

OPINION

¶ 1 Does a homeowners association have the inherent powerto make and enforce reasonable

rules regarding the use of common areas if the recorded covenants do not expressly grant that

authority to the association? We find that a homeowners association does have implied or

inherent authority to regulate the use of common areas even where the recorded covenants

do not expressly grant the authority to regulate the common areas.

¶ 2 The plaintiff, Kirk Ripsch (Ripsch), appeals from a judgment of the circuit court of

Grundy County denying his petition for declaratory judgment following a stipulated bench

trial. In his petition, the plaintiff sought to enjoin the defendant, Goose Lake Association (the

Association), from enforcing a rule prohibiting the use of Tritoon boats on the lake. Tritoon

boats are large pontoon boats which rest on three pontoons rather than the usual two

pontoons. Ripsch maintains that the Association has no authorityto establish rules governing

the use of the lake since the recorded covenants contain no authorization granting the

Association any rule making authority. The Association maintains that it has implicit

authority to regulate the use of the lake as common property, subject only to the requirement

that its regulations be reasonable. Forthe following reasons, we affirm the order of the circuit

court.

¶ 3 BACKGROUND

¶ 4 Ripsch owns a single-family residence on a parcel which abuts a body of water known

as Lincoln Lake; however, he does not own any part of Lincoln Lake. Ripsch purchased the

property on June 23, 1979. By virtue of his purchase, Ripsch became a member of the Goose

Lake Association. The Association is a common interest community comprised of

homeowners living on or adjacent to Goose Lake, Beaver Lake, Half Moon Lake, and

Lincoln Lake in Grundy County. The lakes, including Lincoln Lake, appear to be common

areas controlled by the Association. Only property owners are members of the Association

and enjoy the privilege of attending membership meetings and voting for members of the

Association’s board of directors.

-2-
¶ 5 At the time that Ripsch purchased his property, the only recorded document containing

restrictions on his use of the property was a document titled “Protective Covenants and

Restrictions” recorded August 17, 1971. The document, only two pages in length, contained

a list of general restrictions on the use of each property owner’s own land. Only one of the

listed restrictions addressed the use of the lake: “9. No boat pier may extend more than two

(2) feet into the waters of the lake.” The document also stated: “10. Each property owner

becomes an Associate Member of the Goose Lake Association upon purchase and shall

maintain said membership by payment of an annual maintenance charge, not to exceed

$25.00, unless said maintenance charge is increased by a vote of the members and associate

members of the Association.”

¶ 6 The Association enacted and published a set of bylaws as required by the General Not

For Profit Corporation Act of 1986. 805 ILCS 105/102.25 (West 2010). Although these

bylaws were published to the membership and periodically updated, the bylaws and

subsequent amendments were never recorded. At the time Ripsch purchased his property, he

was provided a copy of the bylaws and the Association rules in effect on the date of

purchase. The record contains a copy of the bylaws dated September 16, 2006. Article II,

section XIV, of the bylaws provided that “all members are bound by the current Goose Lake

Association Rules.” At various times during Ripsch’s membership in the Association, the

board of directors promulgated and published to the membership certain rules purporting to

regulate activities on the lakes and other common areas. These rules addressed such activities

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

was to promote safety on the lakes and waterways and in the community, prevent overfishing and crowding on the water, and provide an overall order to the use of the lake and

other common areas.

¶ 7 Sometime during December 2007, the Association amended its rules to prohibit the use

of pontoon boats with more than two pontoons on Lincoln Lake. When Ripsch was informed

of the rule limiting pontoon boats on Lincoln Lake, he informed the Association’s directors

that he intended to use a Tritoon boat (a boat with three pontoons) on Lincoln Lake. The

Association responded that it would enforce its rules through fines and/or expulsion from the

lake. The instant litigation ensued.

¶ 8 Following a hearing, the trial court ruled in favor of the Association. The court observed

that no Illinois precedent existed to answer the specific question raised by the instant

litigation, i.e., whether a homeowners association’s rules and regulations regarding the use

of common propertymust be contained in recorded covenants in orderto be enforceable. The

court, sua sponte, looked to the Restatement (Third) of Property: Servitudes. Specifically,

comment b of section 6.7 of the Restatement provides that “[e]ven in the absence of an

express grant of authority, an association enjoys an implied power to make rules in

furtherance of its power over the common property.” Further, the trial court observed that the

Restatement stated that “[e]xcept as limited by statute or the governing documents, a

common-interest community has an implied power to adopt reasonable rules to *** govern

the use of common property.” Restatement (Third) of Prop.: Servitudes § 6.7(1)(a) (2000).

The trial court noted that the Restatement is not binding on Illinois courts but has been found

to be persuasive. The court held that, under the analysis articulated in the Restatement, the

-3-
facts in the instant matter established that the Association enacted the rule limiting the size

of pontoon boats on Lincoln Lake in its authority to impose reasonable restrictions on the use

of common property. The court held that Ripsch had not challenged the reasonableness of

the rule, but only the Association’s power to adopt it. The court held that the Association had

the implicit power to enact the rule. Ripsch brought this appeal.

¶ 9 ANALYSIS

¶ 10 At issue is whether the Association may enforce a rule adopted by its board of directors

which placed a limitation upon an owner’s use of the common property. Ripsch maintains

that, under Illinois law, a homeowners association may not restrict the use of any property

unless the restriction is expressly contained in the recorded declarations and bylaws. He cites

Krueger v. Oberto, 309 Ill. App. 3d 358, 369 (1999), for the proposition that a restriction

upon the use of propertymust be recorded and made a part of the chain of title to the property

in order to be enforced. He further maintains that any recorded restriction on the use of

property recorded after the conveyance of that property is not binding upon the grantee.

Cimino v. Dill, 92 Ill. App. 3d 345, 349 (1980). As the matter involves the interpretation of

the language of the restrictive covenants and the statutory authority of the Association, we

will review the decision of the circuit court de novo. Sadler v. Creekmur, 354 Ill. App. 3d

1029, 1036 (2004).

¶ 11 Before addressing the issue presented by the parties, we must point out that the record

fails to establish who holds title to Lincoln Lake. Ripsch acknowledges that he does not have

an ownership interest in the lake. He questions, however, whetherthe Association holds title

to the lake. The Association, on the other hand, assumes that it holds title but has offered no

evidentiary proof of that fact. Our review of the record leads us to conclude that the issue of

who held title to the lake was never addressed by the trial court, and it appears that the trial

court, and the parties, operated under an assumption that the Association held title, or at least

was authorized to act on behalf of the titleholders. If the record had established that the

Association held title to the lake, this matter could have been easily resolved. If the

Association holds title to the lake, then Ripsch’s right to enter onto the lake would be only

that of an invitee and would be subject to any terms and conditions imposed by the

landowner. Rodriquez v. Norfolk & Western Ry. Co., 228 Ill. App. 3d 1024, 1038 (1992).

¶ 12 Ripsch argued on appeal that he possessed riparian rights to reasonable use of the surface

of the lake. Riparian rights which allow an adjacent landowner to have reasonable use of the

surface of a nonnavigable lake require that the party asserting riparian rights own at least a

portion of the lake bed. Alderson v. Fatlan, 231 Ill. 2d 311, 319 (2008). Here, Ripsch claims

no ownership of any portion of the lake bed. Therefore, he has no riparian rights to the

surface of the lake. Id.

¶ 13 Because the record is unclear as to who holds title to Lake Lincoln, and the trial court’s

ruling rests upon a presumption that the Association is either the titleholder or is empowered

to act on behalf of the titleholder, we find that the record allows us to presume that the

Association was acting with apparent authority to enact that finding.

¶ 14 Having addressed the issue of ownership of Lincoln Lake, we now address Ripsch’s

-4-
argument that the Association could not enforce rules regarding the use of the lake that were

not specifically stated in the recorded covenants. Ripsch begins by arguing that all covenants

should be strictly construed in favor of full and unlimited use of property by the property

owner. Westfield Homes, Inc. v. Herrick, 229 Ill. App. 3d 445 (1992). Additionally, he

maintains that restrictions against the free use of property are generally not favored. Hartman

v. Wells, 257 Ill. 167 (1912). Applying these two general principles, Ripsch maintains that

the Association could not enforce the restriction against Tritoon boats on Lincoln Lake. To

do so, he maintains, would limit his free use of the lake and impose a restriction upon his use

of the lake that was not specifically expressed in the recorded covenants that ran with his

parcel.

¶ 15 The Association points out, however, that Westfield and Hartman each addressed

restrictions upon the use by a lot owner of his own lot and did not address reasonable

restrictions upon the use of common property. The Association maintains that this distinction

is crucial. We point out that, as a general rule, a board of directors of a common interest

community has broad powers to enact rules governing the day-to-day operations of the

association. Board of Directors of 175 East Delaware Place Homeowners Ass’n v. Hinojosa,

287 Ill. App. 3d 886, 890 (1997). If the Association attempted to limit Ripsch’s use of his

own land, supposedly for some common good, then it would be prevented from doing so by

the holdings in Westfield and Hartman. At issue here, however, is whether the Association

has the authority to impose rules restricting the use of common property. Ripsch cites no

authority in support of the proposition that the Association may not impose any restrictions

upon the use of common property other than those expressly provided in the recorded

documents running with the land.

¶ 16 Ripsch suggests that Lake Barrington Shore Condominium Ten Homeowners Ass’n v.

May, 196 Ill. App. 3d 280 (1990), supports his argument. We note, however, that Lake

Barrington does not address the distinction between private and common areas that is crucial

to this case. Rather, it addressed only the issue of whether an alleged encroachment into the

common area could be enjoined where the Association failed to establish an encroachment

occurred. In Lake Barrington, a homeowners association sought to enjoin a member from

building a wooden deck that was larger than the 10-foot-square patio that existed at the time

the individual owner purchased his unit. The circuit court denied the injunction, and the

appellate court affirmed that ruling. The court held that the original patio was, itself, common

property, although it was a limited common element reserved for the exclusive use of the unit

owner whose property adjoined the patio. Id. at 282. The court held that, since the patio was

itself a common element, its expansion could not be considered an impermissible

encroachment upon the common area, absent some evidence tending to establish that the

boundary of the original patio was intended as a limitation on the size of the “limited

common elements.” Id. at 283. The court noted that the homeowners association failed to

present such evidence and denied its request for an injunction. Id. It is interesting to note that

the court decided the case on the lack of evidence in the recorded documents establishing the

dimensions of the limited common area; however, it held that “[t]he rule of strict

construction in favor of the free use of property will not be applied to defeat the obvious

purpose of a restriction, even if [that purpose is] not precisely expressed.” Id.

-5-
¶ 17 While there is no Illinois decision supporting Ripsch’s proposition that a homeowners

association cannot enforce rules governing the use of common areas unless those rules were

recorded and ran with the land prior to a grantee’s acquisition of the property, neither is there

case law directly supporting the Association’s argument that a homeowners association has

implicit authority to place reasonable restrictions on the use of the common areas. The trial

court noted the lack of Illinois authority on this issue and consulted the Restatement (Third)

of Prop.: Servitudes. Restatements are not binding upon Illinois courts unless they are

specifically adopted by our supreme court. Tilschner v. Spangler, 409 Ill. App. 3d 988, 933

(2011). We find the Restatement to be persuasive on this issue.

¶ 18 The Restatement points out that, unlike individually owned property, an association

enjoys an implied power to make rules in furtherance of its authority and control over the

common property. The comments to the Restatement further note that an “association has

no inherent power to regulate use of the individually owned properties in the community,

however, except as implied by its responsibility for management of the common property.”

Restatement (Third) of Prop.: Servitudes § 6.7, cmt. b (2000). Thus, the drafters of the

Restatement make clear that where the homeowners association has the responsibility of

administering the common property for the common good of the members, it must have the

implicit powerto make reasonable regulations regarding the use of the common property. To

hold otherwise would be to adopt the absurd conclusion that the association was given the

responsibility of caring for the common property but was given no authority to control the

use of that property. Here, Ripsch would have a court hold that no regulations could ever be

imposed on the use of Lincoln Lake other than the express limitation that “no boat pier may

extend more than two (2) feet into the waters of the lake.” The proposition that the

Association could not promulgate reasonable regulations to control the use of common

property would be an absurdity. It is a well-settled principle that statutory language should

not be construed to produce an absurd result. Vincent v. Department of Human Services, 392

Ill. App. 3d 88, 98 (2009) (McDade, J., specially concurring).

¶ 19 We note that our holding does not leave individual property owners, such as Ripsch, with

no means to challenge a homeowners association’s rules regarding use of common property.

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

would exert authority over the common property on behalf of all the owners. As an

Association member, he would have been able to challenge the reasonableness of those

regulations. As the circuit court noted, however, Ripsch did not challenge the reasonableness

of the rule against Tritoon boats. Thus, he conceded that the regulation against pontoon boats

with more than two pontoons was reasonable.

¶ 20 CONCLUSION

¶ 21 For the foregoing reasons, the judgment of the circuit court of Grundy County is

affirmed.

¶ 22 Affirmed.

-6-