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03/31/97 BOARD DIRECTORS 175 EAST DELAWARE PLACE

March 31, 1997

BOARD OF DIRECTORS OF 175 EAST DELAWARE PLACE HOMEOWNERS ASSOCIATION, PLAINTIFF-APPELLANT,
v.
JORGE HINOJOSA, DONNA HINOJOSA, INDEPENDENCE ONE MORTGAGE CORPORATION, NANCY LEE CARLSON, AND BENJAMIN TESSLER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Michael B. Getty, Judge Presiding.

Rehearing Denied April 24, 1997. Released for Publication June 2, 1997.

The Honorable Justice Rakowski delivered the opinion of the court. McNAMARA and South*, JJ., concur.

The opinion of the court was delivered by: Rakowski

The Honorable 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 Carl son 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, 199 Ill. Dec. 219, 633 N.E.2d 1015 (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 ...


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