Board of Directors of 175 E. Delaware v. Hinojosa

Second Division

March 31, 1997

No. 1-95-2262

BOARD OF DIRECTORS OF 175 EAST DELAWARE ) Appeal from the

PLACE HOMEOWNERS ASSOCIATION, ) Circuit Court of

) Cook County.

Plaintiff-Appellant, )

)

v. )

)

JORGE HINOJOSA, DONNA HINOJOSA, )

INDEPENDENCE ONE MORTGAGE CORPORATION, )

NANCY LEE CARLSON, and BENJAMIN TESSLER,) Honorable

) Michael B. Getty,

Defendants-Appellees. ) Judge Presiding.

JUSTICE RAKOWSKI delivered the opinion of the court:

Plaintiff, board of directors of 175 East Delaware Place

Homeowners Association (the Board), filed suit against defendants,

Nancy Lee Carlson and Benjamin Tessler, Jorge and Donna Hinojosa,

and Independence One Mortgage Corporation, seeking to foreclose on

a statutory lien under the Condominium Property Act (the Act) (765

ILCS 605/9(h) (West 1994)). The trial court dismissed plaintiff's

complaint. Plaintiff appeals, contending that the trial court

erred in finding the Board's no-dog rule unreasonable. For the

reasons that follow, we reverse.

FACTS

175 East Delaware Place was organized as a condominium in 1973

by the recording of a declaration and bylaws. The property

includes floors 45 through 92 of the John Hancock building and

contains 705 condominium units. The declaration and bylaws were

silent on the issue of pet ownership in the building. In 1976, the

Board adopted a rule allowing owners to have pets, including dogs,

only with the permission of the Board. On January 21, 1980, during

a regular board meeting, the Board adopted a rule barring unit

owners from bringing additional dogs onto the premises. In October

of 1985, defendants Nancy Lee Carlson and Benjamin Tessler

purchased a unit in the building. At this time, they signed a pet

agreement acknowledging the no-dog rule. In February of 1993,

while leasing out another one of their units, they signed the same

agreement again. In March of 1993, the no-dog rule was reincluded

in the Board's rules and regulations.

In June of 1993, defendants Carlson and Tessler acquired a

dog. This same month, a group of owners brought suit against the

Board challenging the no-dog rule. Rodgers v. Board of Directors

of 175 East Delaware Place Homeowners Ass'n, No. 93 CH 5602. This

suit was eventually abandoned and is not part of this appeal. In

September of 1993, defendants Carlson and Tessler received notice

of a hearing for their violation of the no-dog rule. The hearing

was held on November 30, 1993, and the committee recommended to the

Board that Carlson and Tessler be ordered to remove the dog within

30 days. If the dog remained on the premises after 30 days,

defendants Carlson and Tessler should be assessed a fine of $100

per day for each day the dog remained. The Board adopted the

committee's recommendation and on January 23, 1994, began assessing

fines on defendants Carlson and Tessler. On April 20, 1994, after

Carlson and Tessler failed to pay the fines, the Board recorded a

notice and claim of statutory lien.

In August of 1994, defendants Carlson and Tessler sold the

unit to defendants Jorge and Donna Hinojosa subject to the lien.

In November of 1994, the Board filed the instant action seeking to

foreclose on the lien. Defendants moved to dismiss the suit

pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735

ILCS 5/2-619(a)(9) (West 1994)), claiming the Board had no

authority to adopt the no-dog rule because the rule conflicted with

the declaration and bylaws. The trial court ruled that the Board

had the power to promulgate the rule but held that the rule was

unreasonable.

ANALYSIS

A. LEGAL BACKGROUND

Condominiums are creatures of statute and, thus, any action

taken on behalf of the condominium must be authorized by statute.

"When a controversy regarding the rights of a condominium unit

owner in a condominium arises, we must examine any relevant

provisions in the Act and the Declaration or bylaws and construe

them as a whole." Carney v. Donley, 261 Ill. App. 3d 1002, 1008

(1994).

A condominium is an interest in real estate created by statute

that gives each owner an interest in an individual unit as well as

an undivided interest in common elements. Administration and

operation of the condominium are vested in the condominium

association, which is comprised of all unit owners. The

administration is exercised through the board of directors, which

is elected by the owners. In addition to the Act, the operation

and administration of the condominium are governed by three

principal documents. These are the declaration, bylaws, and board

rules and regulations. The declaration and bylaws form the basic

framework of the administration, and the day-to-day operations are

managed by board rules and regulations.

A condominium comes into being by the recording of a

declaration. The declaration is prepared and recorded by either

the developer or association. The Act defines the declaration as

the "instrument by which the property is submitted to the

provisions of [the] Act." 765 ILCS 605/2(a) (West 1994). Its

primary function is to provide a constitution for the condominium--

to guide the condominium development throughout the years. The

declaration contains the property's legal description, defines the

units and common elements, provides the percentage of ownership

interests, establishes the rights and obligations of owners, and

contains restrictions on the use of the property. R. Otto,

Illinois Act in Condominium Titles, in Illinois Condominium Law 

1.15, at 1-27 (Ill. Inst. for Cont. Legal Educ. 1994). All

restrictions contained in the declaration are covenants that run

with the land and bind each subsequent owner. They are given a

strong presumption of validity. M. Kurtzon, Representing the

Condominium Association, in Illinois Condominium Law  10.19, at

10-17 (Ill. Inst. for Cont. Legal Educ. 1994). Section 4 of the

Act details what elements must be contained in the declaration.

Paragraph (i) states: "Such other lawful provisions not

inconsistent with the provisions of this Act as the owner or owners

may deem desirable in order to promote and preserve the cooperative

aspect of ownership of the property and to facilitate the proper

administration thereof." 765 ILCS 605/4(i) (West 1994).

The second document is the bylaws, which deal with

administration and procedural matters concerning the property.

Bylaws may be embodied in the declaration or be a separate

document. In either case, the bylaws must be recorded with the

declaration. 765 ILCS 605/17(a) (West 1994). Should the bylaws

conflict with the declaration, the declaration prevails. Section

18 of the Act sets forth certain provisions that shall be included

in the bylaws. Relevant to the issue before us is paragraph (k),

which states: "[R]estrictions on and requirements respecting the

use and maintenance of the units and the use of the common

elements, not set forth in the declaration, as are designed to

prevent unreasonable interference with the use of their respective

units and of the common elements by the several unit owners." 765

ILCS 605/18(k) (West 1994).

The third item governing condominium conduct is the board

rules and regulations. Section 18.4 of the Act deals with powers

and duties of the board and provides that the board may:

"[A]dopt and amend rules and regulations

covering the details of the operation and use

of the property, after a meeting of the unit

owners called for the specific purpose of

discussing the proposed rules and regulations."

765 ILCS 605/18.4(h) (West 1994).

Under this rule, "a board of managers may not take any action that

is beyond the authority granted it under the condominium

instruments and the Condominium Property Act." 765 ILCS 605/18.4,

Historical & Practice Notes, at 129 (West 1993). The board shall

exercise for the association all powers, duties, and authority

vested in the association by law or the condominium documents. It

generally has broad powers and its rules govern the requirements of

day-to-day living in the association. Board rules must be

objective, evenhanded, nondiscriminatory, and applied uniformly.

See J. Shifrin, Cooperative, Condominium, and Homeowners'

Association Litigation, in Real Estate Litigation 11.20, at 11-17

(Ill. Inst. for Cont. Legal Educ. 1994).

B. POWER OF THE BOARD TO PROMULGATE THE NO-DOG RULE

As noted, pursuant to section 18.4 the Board has the power to

adopt rules and regulations. Section 18(k) does discuss

restrictions that shall be included in the bylaws. However, this

provision merely gives the association the authority to include

restrictions in the condominium instruments that will clothe the

restrictions with a strong presumption of validity and make them

less susceptible to attack. The provision does not state that if a

restriction is not contained in the bylaws it will be

unenforceable. We thus conclude that the Board's no-dog rule is

not in conflict the Act.

The 175 East Delaware Place declaration and bylaws do not make

any reference to pet ownership or dogs, in particular. As to the

Board's powers, the declaration provides:

"The Board, may adopt such reasonable rules and

regulations as it may deem advisable for the

maintenance, conservation and beautification of

the Property, and for the health, comfort,

safety and general welfare of the Owners and

occupants of the Property. Written notice of

such rules and regulations shall be given to

all Owners and Occupants and the entire

Property shall at all times be maintained

subject to such rules and regulations."

The declaration clearly gives the Board authority to promulgate

rules regarding use of and restrictions on the use of units.

Because the Board is authorized to promulgate reasonable rules for

the general welfare of the owners and the declaration is silent on

the issue of dog ownership, the instant rule does not conflict with

either the declaration or the bylaws.

Courts that have addressed the issue have held that dogs may

be prohibited or restricted by provisions in the declaration or

bylaws. See Nahrstedt v. Lakeside Village Condominium Ass'n, 8

Cal. 4th 361, 878 P.2d 1275, 33 Cal. Rptr. 2d 63 (1994)

(restriction in recorded declaration barring all pets except fish

and birds enforceable unless unreasonable); Chateau Village North

Condominium Ass'n v. Jordan, 643 P.2d 791 (Colo. App. 1982) (rule

barring all pets appended to bylaws and recorded enforceable);

Parkway Gardens Condominium Ass'n v. Kinser, 536 So. 2d 1076 (Fla.

App. 1988) (board rule barring pets unenforceable because

declaration allowed them); Zeskind v. Jockey Club Condominium

Apartments, Unit II, Inc., 468 So. 2d 1021 (Fla. App. 1985) (no-pet

rule in declaration enforceable); Wilshire Condominium Ass'n v.

Kohlbrand, 368 So. 2d 629 (Fla. App. 1979) (restriction in

declaration barring replacement of lap dogs enforceable); Johnson

v. Keith, 368 Mass. 316, 331 N.E.2d 879 (1975) (board rule barring

all pets unenforceable; rule must be included in bylaws); Noble v.

Murphy, 34 Mass. App. 452, 612 N.E.2d 266 (1993) (restriction

barring all pets incorporated in original recorded documents

enforceable); but see Dulaney Towers Maintenance Corp. v. O'Brey,

46 Md. App. 464, 418 A.2d 1233 (1980) (board rule limiting number

of pets enforceable). The issue before us, however, is whether the

Board may promulgate a rule restricting dog ownership. This issue

has not been addressed in Illinois.

Apple II Condominium Ass'n v. Worth Bank & Trust Co., 277 Ill.

App. 3d 345 (1995), addresses use restrictions under the Act. In

Apple II, we set forth standards for evaluating such restrictions

and adopted the analysis set forth in Hidden Harbour Estates, Inc.

v. Basso, 393 So. 2d 637 (Fla. App. 1981). We differentiated use

restrictions that are contained in the declaration or bylaws from

those promulgated by board rule. The restrictions in the first

category "are clothed in a very strong presumption of validity and

will not be invalidated absent a showing that they are wholly

arbitrary in their application, in violation of public policy, or

that they abrogate some fundamental constitutional right. ***

'[R]easonableness' is not the appropriate test for such

restrictions." Apple II, 277 Ill. App. 3d at 250-51. However,

when the board promulgates a rule restricting the use of property,

the second category, "the board must affirmatively show the use it

wishes to prohibit or restrict is 'antagonistic to the legitimate

objectives of the condominium association.' " Apple II, 277 Ill.

App. 3d at 351, quoting Basso, 393 So. 2d at 640. Thus, "[w]hen

such a rule [use restriction] is adopted by the board alone or

requires the board to exercise discretion, we will scrutinize the

restriction and uphold it only if it is affirmatively shown to be

reasonable in its purpose and application." Apple II, 277 Ill.

App. 3d at 352.

Based on the above, we conclude that the Board had the power

to promulgate a reasonable no-dog rule.

C. REASONABLENESS OF RULE

Because the rule was promulgated by the Board, it is not

clothed with a strong presumption of validity. Thus, we must

carefully scrutinize the rule to determine if it is reasonable in

its purpose and application. Because the facts are not in dispute,

the issue is one of law.

In Dulaney Towers Maintenance Corp. v. O'Brey, 46 Md. App.

464, 418 A.2d 1233 (1980), the court stated:

"The rationale for allowing the placing of

restrictions in, or the barring of pets by way

of, house rules is based on potentially

offensive odors, noise, possible health

hazards, clean-up and maintenance problems, and

the fact that pets can and do defile hallways,

elevators, and other common areas." Dulaney

Towers Maintenance, 46 Md. App. at 466, 418

A.2d at 1235.

The above factors, in conjunction with the specific facts of

this case, lead us to conclude the Board's no-dog rule is a

reasonable exercise of the Board's rule-making power. The John

Hancock building is located in a very urban and densely populated

area of the city where parks, grass, and other recreational areas

for dogs are scarce. The 705 residences are located on the 45th

through 92nd floors. In order to take a dog out, one must access

elevators and descend anywhere from 45 to 92 floors.

The rule was adopted to prevent possible injury or harm. The

original purpose for promulgating the rule was due to an incident

in which one dog killed another dog in the building. The Board had

tried less restrictive measures to regulate dogs in the past.

However, these measures did not cure or alleviate what the Board

reasonably perceived to be potential and real problems. It should

also be noted that when the no-dog rule was adopted, owners were

allowed to retain existing dogs. The rule only prohibited

additional and/or replacement dogs.

Because the Board applied the rule to all owners and the

purpose for the rule was rational, we conclude that the rule is

reasonable under the specific facts of this case.

CONCLUSION

Based on the foregoing, we reverse the decision of the circuit

court of Cook County and remand for further proceedings.

Reversed and remanded.

McNAMARA and SOUTH*, JJ., concur.

*Justice South has replaced Justice Egan on the panel.