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Wier v. Isenberg

OPINION FILED APRIL 30, 1981.

JOHN L. WIER ET AL., PLAINTIFFS-APPELLEES,

v.

SHELDON ISENBERG ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Du Page County; the Hon. ROBERT A. NOLAN, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiffs, John and Elizabeth Wier, and others, brought this action in the circuit court of Du Page County to enforce a subdivision covenant restricting the use of the property owned by defendants Sheldon and Raye Isenberg to residential purposes. Defendants appeal from the judgment of the trial court which enjoined them from the practice of psychotherapy and social work from their home except on an emergency basis, asserting that (1) their practice of individual and family psychotherapy from their home, which is also used for residential purposes, does not violate a protective covenant limiting the property to residential use; and (2) that the trial court erred in denying their motion for a change of judge.

The record discloses that on January 7, 1958, a "Declaration of Protective Land Restrictions" encompassing the subdivision in which all of the parties reside was recorded in the office of the recorder of deeds of Du Page County, and it provided in relevant part:

"Now, therefore, the undersigned River Haven Estates, Inc., an Illinois corporation, hereby declares that the above described premises shall be subject to the following restrictions: and these restrictions shall be binding and enforceable against the above described premises;

1. Land use and building type. No lot shall be used except for single residential purposes. No building shall be erected, altered, placed or permitted to remain on any land other than one attached single family dwelling, not to exceed two and one-half stories in height, and a private garage for not more than two cars. A single family dwelling is hereby defined to be a residential structure designed and used for one family, consisting of a number of individuals living in the premises as a single house-keeping unit.

5. Signs. No sign of any kind shall be displayed to the public view on any lot except one professional sign of not more than one square foot * * *."

On August 23, 1977, defendants took title to a lot within the subdivision by a deed which recited that it was "subject to * * * restrictions of record, if any." Defendants are licensed to practice individual and family psychotherapy, and informed their neighbors (some of whom are plaintiffs in this suit) of their intention to conduct their practice from their home. To accommodate their patients, defendants constructed a sidewalk in 1978 leading from their driveway to a pre-existing entrance to the basement or lower level in which they meet with their clients. The basement appears to be a regular part of the house and defendants' children are permitted to use it, even when clients are present, but they may not enter the room being used by the client. Defendants depreciate approximately one-half of the house because of this use for Federal income tax purposes, and receive approximately one-half of their income from counseling carried out in the home.

Sheldon Isenberg sees 18 to 20 clients for a total of 18 to 20 hours each week in the home. Raye Isenberg initially saw five clients for 5 hours each week and her professional activities in the home increased to seven clients for 7 hours a week after 1978. Neither defendant sees clients after 10 p.m. on weekdays nor at any time on weekends. The greatest number of clients present at any one time is a mother, father, and their children, and no non-family group activities are conducted. No one with a criminal record, no hard-core drug users, or who might endanger others is taken as a referral. Although parking for their clients is available on the street, it is not needed since the driveway to the home accommodates six cars. There was testimony, however, that since defendants moved in traffic has increased and some cars used neighbors' driveways in order to turn around. With the exception of two clients who have mistaken a neighbor's house for that of defendants and were seen by the neighbor in his yard, there have been no disturbances resulting from defendants' professional activities. While defendants usually worked alone, a graduate student had an internship with them for a short time.

We consider first whether defendants' professional use of the premises is a violation of the restrictive covenant entitling plaintiffs to injunctive relief.

Private covenants restricting the use of real estate to residential purposes have long been considered to be valid and enforceable in Illinois (N.H. Engle & Sons, Inc. v. Laurich (1968), 98 Ill. App.2d 18, 240 N.E.2d 9). The person in whose favor a restrictive covenant runs is prima facie entitled to its enforcement (Cordogan v. Union National Bank (1978), 64 Ill. App.3d 248, 380 N.E.2d 1194), and is not required to show an injury since the mere breach of the covenant is sufficient grounds to enjoin its violation (Freehling v. Development Management Group, Inc. (1979), 75 Ill. App.3d 243, 393 N.E.2d 646). A restrictive covenant will be enforced unless there has been such a change in the character and environment of the property that the objectives of the restrictions cannot be accomplished by their enforcement or, if by such change it would be unreasonable or oppressive to enforce them. (Cordogan v. Union National Bank; Boschelli v. Villa Park Trust & Savings Bank (1974), 23 Ill. App.3d 82, 318 N.E.2d 527.) While a change in the character of the surrounding property might preclude injunctive relief, a court does not balance the equities as it would in an ordinary nuisance case or in a request for rezoning. Restrictive covenants are in a different class and unless against public policy or the principles of waiver or estoppel apply, their violation will generally be enjoined. (Cordogan v. Union National Bank.) The burden is on the party seeking relief from the enforcement of the restriction to establish that there has been a change in circumstances affecting the validity of the restriction so that its object can no longer be accomplished and therefore it can be removed without unjustly injuring neighboring property. Cordogan v. Union National Bank; Boschelli v. Villa Park Trust & Savings Bank.

In the present case, defendants do not appear to argue that the character of the neighborhood has substantially changed, but assert that their use of the house is not a violation of the covenant. In interpreting a covenant, the general rule has been to construe its language strictly (Freehling v. Development Management Group, Inc. (1979), 75 Ill. App.3d 243, 393 N.E.2d 646), and all doubts or ambiguities are to be resolved in favor of natural rights and against restrictions on the use of property. (Cordogan v. Union National Bank of Elgin (1978), 64 Ill. App.3d 248, 380 N.E.2d 1194.) This rule will not be applied, however, to ignore or override the specific language or obvious purpose of the restriction. Freehling v. Development Management Group, Inc.; Cordogan v. Union National Bank.

Defendants essentially argue that since the covenant does not expressly prohibit lot owners from engaging in those professions which are traditionally practiced from the home, it should not be construed to foreclose them from carrying on their counseling services from it, a practice which they assert is most effective in a family setting. They contend that (1) social work services have been held to be customarily incidental to residential uses, citing County of Du Page v. Elliot (1980), 85 Ill. App.3d 225, 406 N.E.2d 592; (2) their house is a single-family residence both as to design and use; (3) since the covenant permits the display of a small professional sign, it recognized a custom of practicing professions from the home; and (4) the use of their property is not so intense as to adversely affect the neighborhood as compared to the benefits derived by the community.

It should be noted initially that defendants' reliance on County of Du Page v. Elliot is misplaced. That case was concerned with the interpretation of a zoning ordinance which by its terms permitted accessory uses of the subject property customarily incidental to residential use and thus is inapplicable here.

While defendants' home has not been substantially altered and remains a single-family residence in both design and accompanying use, the physical appearance of the home is not the sole criterion for determining whether a covenant restricting property to "residential purposes" precludes the practice of a profession within the residence. (N.H. Engle & Sons, Inc. v. Laurich (1968), 98 Ill. App.2d 18, 240 N.E.2d 9.) It has been held that such a covenant is violated by engaging in a profession from the home, even if there is no change in the structure. (Boschelli v. Villa Park Trust & Savings Bank (1974), 23 Ill. App.3d 82, 318 N.E.2d 527.) Rather, it is the ...


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