                           ILLINOIS OFFICIAL REPORTS
                                       Appellate Court




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




Appellate Court            KIRK RIPSCH, Plaintiff-Appellant, v. GOOSE LAKE ASSOCIATION,
Caption                    Defendant-Appellee.



District & No.             Third District
                           Docket No. 3-12-0319


Filed                      May 14, 2013


Held                       A homeowner’s association has the implied or inherent authority to
(Note: This syllabus       regulate the use of common areas even when the recorded covenants do
constitutes no part of     not expressly grant the association that authority.
the opinion of the court
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Grundy County, No. 10-MR-63; the
Review                     Hon. Lance R. Peterson, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Brett R. Geiger (argued), of Malmquist & Geiger, of Morris, for
Appeal                      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 power to 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 authority to 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. For the 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.

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¶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 over-
     fishing 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 property must be contained in recorded covenants in order to 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

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       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 property must 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, whether the 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

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       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 power to 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.


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