On May 14, 2013, the Illinois Appellate Court, Third District, issued its decision in the case of Ripsch v. Goose Lake Association, 2013 IL App (3d) 120319. The question raised before the appellate court was “Does a homeowners association have the inherent power to make and enforce reasonable rules regarding the use of common areas if the recorded documents do not expressly grant that authority to the association?” The appellate court, in a case of first impression, found 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.”
The plaintiff owns a single family residence on a parcel that abutted a lake. When the plaintiff purchased his property in 1979, he became a member of the Goose Lake Association (the “Association”). The appellate court found that the lake appeared to be a common area controlled by the Association (no evidence was submitted with regard to the ownership of the lake but all parties and the trial court assumed that the Association was the titleholder to the lake). When the plaintiff purchased his property, the only recorded document containing restrictions on the use of the property was a two-page document entitled “Protective Covenants and Restrictions.” This document contained a list of general restrictions on the use of the property owner’s own land but only one restriction regarding the use of the lake that dealt with boat piers. The Association also enacted a set of bylaws which, while published to the membership, were never recorded. The bylaws contain a provision that states “all members are bound by the current Goose Lake Association rules.” At various times, the Association’s Board of Directors promulgated certain rules regulating activities on the lake and common areas.
In 2007, the Association amended its rules to prohibit the use of pontoon boats with more than two pontoons on the lake (tritoon). The plaintiff informed the Board of Director’s that he intended to use a tritoon boat on the lake. The Association responded by stating that it would enforce its rules through a fine or expulsion from the lake. The plaintiff thereupon filed this lawsuit.
The trial court ruled in favor of the Association, finding that, even though the rules were not contained in recorded covenants, the Association had the authority to enact a rule limiting the size of pontoon boats on the lake as a reasonable restriction on the use of common property. The trial court further held that, since the plaintiff had not challenged the reasonableness of the rule, the Association had the implicit power to enact the rule.
The plaintiff appealed the decision of the trial court, maintaining that the Board of Directors of the Association did not have the authority to restrict the use of the property unless the restriction is contained in the recorded documents. The appellate court found that the cases relied upon by the plaintiff dealt with restrictions placed upon the use by a lot owner of his own lot and did not address reasonable restrictions upon the use of common property. Although the appellate court could not find any case law in support of the Association’s argument that a homeowners association has implicit authority to enact reasonable restrictions on the use of common areas, the appellate court adopted the arguments made by the Restatement (Third) of Property: Servitudes.
The appellate court stated that the Restatement found that associations had an implied power to make rules to control its common property. Thus, if an association has the responsibility of administering its common property, “it must have the implicit power to make reasonable regulations regarding the use of the common property.” The appellate court noted, however, that a property owner still has the right to challenge the reasonableness of an association’s regulations; in this case, the plaintiff did not challenge the reasonableness of the rule against tritoon boats and thus conceded that the rule was reasonable.
This is an important case for homeowners associations in that it confirms the implied authority of associations to regulate their common areas even where the recorded documents do not expressly grant that authority.