Appeal from the Circuit Court of Du Page County. No. 00--MR--483 Honorable Robert E. Byrne, Judge, Presiding. Appeal from the Circuit Court of Du Page County. No. 98--CH--40 Honorable Bonnie M. Wheaton, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Hutchinson
These consolidated appeals involve disputes between several homeowners in a residential community and those who claim to act on behalf of all the homeowners in the community. Plaintiffs, Harold E. Scott, Peter G. Spelson, and Timothy M. Mlsna, live in York Woods in Oak Brook. Defendant York Woods Community Association (the Association) asserts that it is the duly formed homeowners' association for York Woods. The individual defendants belong to the Association's board of governors (the Board). York Woods originated from a "Declaration of Protective Covenants" (the Declaration) recorded in 1962. The original York Woods Community Association (the Old Association) was incorporated in 1963 but was dissolved in 1988.
Plaintiffs Scott and Spelson appeal a judgment declaring that the Association is the legitimate successor to the Old Association. Plaintiff and counterdefendant Mlsna appeals a judgment declaring that the Association is the legitimate successor to the Old Association and striking down the Declaration's restrictions on the amendment process. The court also invalidated several amendments to the Declaration (the 1989 covenants), but that ruling is not at issue here. On appeal, plaintiffs have filed a single brief asserting that (1) the Association was not validly incorporated under the General Not For Profit Corporation Act of 1986 (the Act) (805 ILCS 105/101.01 et seq. (West 1996)) and thus did not inherit the Old Association's powers; and (2) the Declaration's "restrictive windows" for amendments are valid. We agree with plaintiffs, and we reverse the judgments and enter judgments for plaintiffs.
To frame the issues, we must recount some of the checkered history of the York Woods community. On October 5, 1962, a private developer recorded the Declaration. Several sections of that document are pertinent here. Article VI specifies the organization and powers of the homeowners' association. It reads in part:
"1. Creation and Purposes
There shall be formed an Illinois not-for-profit corporation to be known as the York Woods Community Association *** whose purposes shall be to insure high standards of maintenance and operation of all property in York Woods reserved by the Declarant for the common use of all residents and owners of property therein ***."
Article VI elsewhere states that every record owner of property in the community shall become a member of the homeowners' association and shall have one vote on all matters submitted to a vote by the association. Paragraph 7 of article VI provides that article VI may be amended at any time by the written consent of two-thirds of the members of the homeowners' association.
Article VII sets out the procedure for amending the covenants in the Declaration. It provides in pertinent part:
"1. Each of the Covenants set forth in this Declaration shall continue and be binding as set forth in paragraph 2 of this Article VII for an initial period of 30 years from the date of October 4th 1962, and thereafter for successive periods of 25 years each.
3. The record owners in fee simple of the residential lots in York Woods may revoke, modify, amend or supplement in whole or in part any or all of the Covenants and conditions contained in this Declaration and may release from any part or all of said Covenants all or any part of the real property subject thereto, but only at the following times and in the following manner:
a. Any such change or changes may be made effective at any time within ten years from the date of recording of this Declaration if the record owners in fee simple of at least three-fourths of said lots consent thereto;
b. Any such change or changes may be made at the end of said initial 30 year period or any such successive 25 year period if the record owners in fee simple of at least two-thirds of said lots consent thereto at least five years prior to the end of any such period;
c. Any such consents shall be effective only if expressed in a written instrument or instruments executed and acknowledged by each of the consenting owners and recorded in the Office of the Recorder of Deeds of Du Page County, Illinois; provided, however, that Article VI hereof may be amended at any time in the manner therein set forth." (Emphasis in original.)
The Old Association was duly incorporated in 1963 and functioned according to the Declaration. However, on August 1, 1988, the Illinois Secretary of State's office dissolved the Old Association, apparently for neglecting to timely file an annual report. The parties agree that nobody from York Woods intended to cause the dissolution of the Old Association. Indeed, no homeowner, officer, or Board member even knew about the dissolution until 1997, when ...