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05/11/89 the 400 Condominium v. John E. Gedo Et Al.

May 11, 1989

THE 400 CONDOMINIUM ASSOCIATION, PLAINTIFF-APPELLEE

v.

JOHN E. GEDO ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

539 N.E.2d 256, 183 Ill. App. 3d 582, 131 Ill. Dec. 903 1989.IL.709

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE JIGANTI delivered the opinion of the court. JOHNSON, J., concurs. JUSTICE McMORROW, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

This case involves a declaratory judgment that floors 8 through 39 of a multi-use high-rise building located at 400 East Randolph Street in Chicago were restricted to residential use only. The defendants are doctors who own condominium units on floors 8 through 39 and use those units to render professional services. The plaintiff, 400 Condominium Association (Association), filed a complaint against the doctors alleging that their business use of the units violated section 21 of the "Declaration of Condominium Ownership," which provides that "[units] located on Levels one through seven and Level forty may be used for purposes other than housing and related common purposes." The trial court found that the only reasonable interpretation of section 21 is that it restricts the use of units on levels 8 through 39 to residential use only. The doctors have appealed, contending that the trial court erred in interpreting section 21 as a restriction on the use of their units.

The condominium documents pertinent to this appeal are the "Declaration of Condominium Ownership" (Declaration) and the "Articles of Incorporation of the Association" (Articles). The Declaration states that there has been formed an Association which "shall be the governing body for all of the Unit Owners, for the . . . administration and operation of the Property, as provided in the [Condominium Property] Act, this Declaration and the By-Laws of the Association." Paragraph 5 of the Articles provides:

"The purpose or purposes for which the corporation is organized are: To maintain, operate and manage a condominium residential building and improvements situated at 400 East Randolph Street, Chicago, Illinois."

Second, section 21 of the Declaration provides as follows:

"Use and occupancy restrictions. Units located on Levels one through seven and Level forty may be used for purposes other than housing and related common purposes."

The Association, taking the position that these two provisions served to restrict levels 8 through 39 to residential use only, filed a three-count amended complaint against the defendant doctors. Count I alleged that the doctors' business use of condominium units on levels 8 through 39 constituted a violation of the Declaration and sought an injunction, an involuntary sale of the doctors' units and costs and attorney fees. Count II alleged that the business use of the units in question constituted a nuisance. Count III requested a declaratory judgment that section 21 of the Declaration restricted the units on levels 8 through 39 to residential use. Following a hearing on the parties' cross-motions for summary judgment, the trial court found that "the only reasonable construction of paragraph 21 of the Declaration of Condominium is a restrictive covenant which favors residential use only on floor levels 8 through 39." The court accordingly granted the Association's motion for summary judgment on count III and denied the doctors' cross-motion on that count. The trial court granted the doctors' motion for summary judgment on the common-law nuisance claim in count II, but denied their motion for summary judgment on count I. The doctors have appealed, contending that the trial court erred in interpreting section 21 of the Declaration as a use restriction.

Because restrictions on the free use of property are disfavored (Cimino v. Dill (1982), 108 Ill. App. 3d 782, 786, 439 N.E.2d 980), restrictive covenants are to be strictly construed and will be enforced only if they are reasonable, clear and definite (Lakeland Property Owners Association v. Larson (1984), 121 Ill. App. 3d 805, 810, 459 N.E.2d 1164). Any doubts or ambiguities in the language of the covenant will be resolved against the restriction. (Lakeland, 121 Ill. App. 3d 805, 459 N.E.2d 1164.) However, a covenant restricting the use of property for residential purposes is valid and will be enforced where the intent of the drafter to impose the restriction is clearly manifested. (Cimino, 108 Ill. App. 3d 782, 439 N.E.2d 980.) Strict construction should not be used to destroy the restriction's purpose or to defeat the obvious intention of the parties, even though it is not precisely expressed. Freehling v. Development Management Group, Inc. (1979), 75 Ill. App. 3d 243, 248, 393 N.E.2d 646.

The parties agree on both the above-stated principles of law and the pertinent facts. Their disagreement extends solely to the proper interpretation of section 21 of the Declaration. In effect, the doctors maintain that in order to sufficiently constitute a use restriction, the section must be couched in negative or prohibitory terms and must expressly mention floors 8 through 39. Although the doctors have cited several cases stating that a use restriction must be clear and unambiguous, they have failed to cite any authority to support their contention that the restriction must in every event be couched in negative or prohibitory terms in order to be valid.

We believe that the proper test of interpretation is whether the intent to set forth a use restriction is clearly and unambiguously expressed, regardless of the particular form of the language employed. In the case at bar, paragraph 5 of the Association's Articles of Incorporation states the Association's purpose as the organization and incorporation of a "residential" condominium building. Section 21 of the Declaration, entitled "Use and occupancy restrictions," states that floors 1 through 7 and floor 40 may be used for nonresidential purposes. Read together, these provisions can only be interpreted as limiting nonresidential uses to floors 1 through 7 and 40 and correspondingly prohibiting such uses on floors 8 through 39. The doctors have failed to suggest any other possible interpretation of section 21, and if we accept their position that it does not impose a use restriction on floors 8 through 39, we would have to conclude that the section is meaningless. It ...


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