2424 Chicago Condominium Association v. Revite Corporation

2021 IL App (1st) 200906-UNo. 1-20-0906
Order filed December 30, 2021
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
2424 CHICAGO CONDOMINIUM ASSOCIATION, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 16 CH 4817
)
REVITE CORPORATION, ) Honorable
) Franklin U. Valderrama,
Defendant-Appellant. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court.
Presiding Justice Reyes and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: The condominium association was entitled to summary judgment on its claim for
declaratory and injunctive relief where the owner of the ground floor commercial
units built a fence without seeking or obtaining the prior approval of the
condominium board.
¶2 The plaintiff condominium association moved for summary judgment on its claim for
injunctive and declaratory relief, which alleged that the defendant owner of the ground floor
commercial units of the condominium building constructed a fence without seeking or obtaining
No. 1-20-0906
the prior approval of the condominium board, in violation of the condominium’s declaration.
The defendant filed a cross-motion for summary judgment. The trial court granted plaintiff’s
summary judgment motion and denied defendant’s cross-motion. The trial court also granted
plaintiff’s petition for attorney fees.
¶3 On appeal, defendant argues that the trial court erred by granting summary judgment to
plaintiff because plaintiff was not entitled to injunctive relief since its condominium declaration
did not contain a restriction prohibiting defendant from constructing the fence on the limited
common element area owned by defendant. Defendant also argues that questions of material fact
precluded the entry of summary judgment in favor of plaintiff. Finally, defendant argues that no
basis in contract or the law supports an award of attorney fees for plaintiff.
¶4 For the reasons that follow, we affirm the judgment of the circuit court.1
¶5 I. BACKGROUND
¶6 Plaintiff 2424 Chicago Condominium Association (Association) is an eight unit, mixed-
use condominium building comprised of six residential units and two ground floor commercial
units. Defendant Revite Corporation (Revite) is the owner of the two ground floor commercial
units, where it operates a medical practice. In October 2015, Revite began constructing a fence
directly in front of the commercial units without seeking or obtaining permission from the
Association. After the Association discovered the project and directed Revite to cease
construction, Revite continued erecting the fence.
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),
this appeal has been resolved without oral argument upon the entry of a separate written order.
-2-
No. 1-20-0906
¶7 In April 2016, the Association filed a complaint against Revite seeking injunctive and
declaratory relief. The Association later amended the complaint, asserting a breach of contract
claim and seeking a mandatory injunction requiring Revite to return the common elements to their
original condition by removing the fence. The Association’s claim for declaratory relief asserted
that Revite violated the condominium declaration and that the Association had the authority to
abate or remove any condition that violated the terms of the declaration.
¶8 Revite moved to dismiss the complaint under section 2-619(a)(9) of the Code of Civil
Procedure (735 ILCS 5/2-619(a)(9) (West 2016)), primarily arguing that the Association failed to
properly approve the filing of the lawsuit at an open meeting of its board of directors. Following
briefing and oral argument, the trial court in January 2017 denied Revite’s motion to dismiss,
finding that issues of fact precluded dismissal of the case and necessitated discovery.
¶9 In March 2017, Revite filed its answer and affirmative defenses, which asserted that
(1) the fence either was not constructed on the Association’s limited common elements, or was
constructed on the limited common elements with the permission of the developer, or was
constructed on the limited common elements and was necessary for Revite’s safety; (2) the
Association never properly retained a law firm to file the lawsuit; (3) the Association’s rules and
regulations were void; and (4) the Association never properly approved the filing of the lawsuit.
The Association generally denied the legal sufficiency of Revite’s affirmative defenses.
¶ 10 After the completion of discovery and an unsuccessful attempt to mediate a resolution, the
parties filed cross-motions for summary judgment.
-3-
No. 1-20-0906
¶ 11 The Association’s summary judgment motion argued that (1) Revite constructed the fence
without requesting or obtaining the Association’s permission and continued constructing the fence
after the Association demanded that Revite stop, (2) the evidence showed that the Association
voted on and approved the filing of a lawsuit at an open meeting, which was corroborated by
Revite’s own transcript of that meeting, (3) the fence project was subject to the declaration’s
approval requirements because Revite previously conceded that the fence was built on the limited
common elements, (4) Revite’s “safety” pretext was irrelevant and the trial court need not balance
the equities because Revite constructed the fence despite knowing that doing so without the
Association’s permission violated the declaration, (5) any purported permission from the
developer to build the fence was also irrelevant because the fence was built after the developer
turned the condominium property over to the unit owners, and (6) the Association was entitled to
an award of attorney fees pursuant to the clear and unambiguous authority of its declaration and
section 9.2(b) of the Condominium Property Act (Act) (765 ILCS 605/9.2(b) (West 2016)), which
provided for an award of attorney fees to the prevailing party in litigation filed to enforce the
declaration.
¶ 12 In its motion, Revite contended that it was entitled to summary judgment because the fence
protected its property, was approved by the developer, did not violate any prohibition against
fences in the declaration, and was consistent with fences at other properties in the same
neighborhood.
¶ 13 In response, the Association argued that Revite’s motion contained an argument wherein
Revite admitted that the fence was built on the limited common elements. The Association asserted
-4-
No. 1-20-0906
that this admission by Revite compelled the court to conclude that Revite violated the declaration
when it installed the fence and that such a violation could be properly addressed by the issuance
of an injunction.
¶ 14 On May 31, 2018, the trial court granted the Association’s motion for summary judgment
and denied Revite’s motion for summary judgment. The court found that Revite was required to
obtain consent prior to constructing the fence and failed to obtain that authorization. The court also
ruled that the Association was entitled to an award of attorney fees and granted the Association
leave to file an attorney fees petition.
¶ 15 After the Association filed its petition for attorney fees, Revite moved the court to
reconsider its May 2018 decision. Revite argued the court’s order was based on an erroneous
reading of the condominium declaration and an erroneous application of law. Specifically, Revite
argued that (1) the Association’s authority over Revite’s use and occupancy of its commercial units
was limited to the restrictions specifically identified in article IX, section (b) of the declaration,
and none of those listed restrictions prohibited the installation of a fence on Revite’s property,
(2) the emails Revite submitted to the court showed that Revite believed it had the developer’s
permission to install the fence, (3) the declaration intended to draw a specific distinction between
commercial and residential units, and the definition of “Limited Common Elements” did not
include the commercial units, (4) the necessity of the fence for security purposes was a genuine
issue of material fact that precluded summary judgment, (5) the declaration did not provide the
Association with the basis for an injunction, and (6) no statutory or contractual basis provided for
an award of attorney fees to the Association.
-5-
No. 1-20-0906
¶ 16 In its response, the Association stated that its summary judgment motion was predicated
on the provisions of the declaration in article III, section (3)(a); article IX, section (j); and article
XI. The Association contended that those provisions, when read together, required Revite to obtain
the Association’s approval before modifying the common elements (of which the limited common
elements, including the fence, were a subpart) and authorized the Association to seek injunctive
relief to abate a violation of the declaration. The Association also stated, inter alia, that Revite
(1) forfeited by raising for the first time the arguments that the fence was not built on the common
elements and that Revite’s units did not meet the definition of “Unit” under the declaration,
(2) had already conceded that it constructed the fence on a limited common element, and
(3) submitted no evidence to rebut the developer’s affidavit and deposition testimony that denied
giving Revite permission to construct the fence. Finally, the Association stated that it was entitled
to an award of its attorney fees under article XI of the declaration and section 9.2(b) of the Act.
¶ 17 On November 27, 2018, the trial court denied Revite’s motion for reconsideration.
The court stated, inter alia, that the fence was constructed on the common elements, the declaration
expressly provided that any construction on the common elements must be authorized by the
condominium board’s prior consent, and Revite did not have either the Association’s or the
developer’s permission to construct the fence. The court also stated that Revite forfeited its
argument about its commercial units not meeting the definition of “Unit” in the declaration and
that Revite’s argument concerning the necessity of the security fence was irrelevant.
¶ 18 The trial court stayed enforcement of the summary judgment order while the Association’s
petition for attorney fees was being adjudicated. On July 23, 2019, the trial court conducted an
-6-
No. 1-20-0906
evidentiary hearing on the Association’s attorney fee petition, which hearing consisted of live
testimony from the Association’s counsel in support of the attorney fee award. The record does
not include a transcript of that hearing.
¶ 19 On July 29, 2020, the trial court issued a seven-page written order that awarded the
Association $43,621.68 in attorney fees but denied the Association’s request for reimbursement of
court costs.
¶ 20 On August 11, 2020, the trial court granted Revite’s motion to stay enforcement of the trial
court’s orders of May 31, 2018, November 27, 2018, and July 29, 2020, pending appeal. Revite
timely filed its notice of appeal and posted an appeal bond.
¶ 21 II. ANALYSIS
¶ 22 Summary judgment is proper when the pleadings, depositions, admissions, and affidavits,
construed strictly against the movant and liberally in favor of the nonmovant, show that there is
no genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. 735 ILCS 5/2-1005(c) (West 2018); Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32,
42-43 (2004). The purpose of summary judgment is not to try a question of fact, but to determine
whether a genuine issue of material fact exists. Illinois State Bar Ass’n Mutual Insurance Co. v.
Law Office of Tuzzolino & Terpinas, 2015 IL 117096, ¶ 14. Summary judgment is a drastic
measure and should be granted only when the movant’s right to judgment is clear and free from
doubt. Adams, 211 Ill. 2d at 42-43. Where a reasonable person could draw divergent inferences
from the undisputed facts, summary judgment should be denied. Id.-7-
No. 1-20-0906
¶ 23 A party moving for summary judgment may prevail by either (1) affirmatively disproving
the nonmovant’s case by introducing evidence that, if uncontroverted, would entitle the movant to
judgment as a matter of law; or (2) establishing that the nonmovant lacks sufficient evidence to
prove an essential element of the nonmovant’s cause of action. Carolan v. City of Chicago, 2018
IL App (1st) 170205, ¶ 11. Once the movant satisfies the initial burden of production, the burden
then shifts to the nonmovant to present a competent factual basis that would arguably entitle the
nonmovant to a judgment under the applicable law. Argueta v. Krivickas, 2011 IL App (1st)
102166, ¶ 6. The nonmovant cannot rest on his pleading if the movant has supplied uncontradicted
facts that would warrant judgment for the movant. Abrams v. City of Chicago, 211 Ill. 2d 251, 257
(2004); Valfer v. Evanston Northwestern Healthcare, 2016 IL 119220, ¶ 20.
¶ 24 In opposing a summary judgment motion, the nonmovant must present facts, not
unsupported conclusions, speculation, conjecture, guess, or opinions, which are all insufficient to
withstand summary judgment. In re Estate of Crawford, 2019 IL App (1st) 182703, ¶ 39. The facts
presented by the nonmovant in opposition to a motion for summary judgment must be competent
facts under the applicable law. Wiszowaty v. Baumgard, 257 Ill. App. 3d 812, 819 (1994). Any
evidence that would be inadmissible at trial cannot be considered in a summary judgment
proceeding. Watkins v. Schmitt, 172 Ill. 2d 193, 203-04 (1996); Zamora v. Lewis, 2019 IL App
(1st) 181642, ¶ 67.
¶ 25 Where, as here, the parties have filed cross-motions for summary judgment, they have
conceded that there are no genuine issues of material fact and have agreed that only questions of
law are involved. Nationwide Financial, LP v. Pobuda, 2014 IL 116717, ¶ 24. In such a situation,
-8-
No. 1-20-0906
the parties request that the court decide the issues as a matter of law. Id. However, the mere filing
of cross-motions does not preclude a determination that triable questions of material fact exist.
Andrews v. Cramer, 256 Ill. App. 3d 766, 769 (1993). Partial summary judgment may be granted
whenever there is no material factual dispute as to any major issue in a case, even if substantial
controversy exists with respect to other issues. Gleicher, Friberg & Associates, M.D., S.C. v.
University of Health Sciences, Chicago Medical School, 224 Ill. App. 3d 77, 87 (1991).
We review de novo the trial court’s judgment on cross-motions for summary judgment. Pobuda,
2014 IL 116717, ¶ 24; see also Thomas v. Weatherguard Construction Co., 2015 IL App (1st)
142785, ¶ 63 (under de novo review, the reviewing court performs the same analysis the trial court
would perform).
¶ 26 A. Right to Injunctive Relief
¶ 27 Revite argues the Association was not entitled to summary judgment because it could not
establish its right to a mandatory injunction requiring the removal of the fence since the
condominium declaration did not contain a reasonable, clear and definite restrictive covenant
prohibiting a fence on the limited common elements area owned by Revite. The fence is located
directly behind the city’s sidewalk and in front of the two ground floor commercial units owned
by Revite. Revite contends that neither the declaration nor the plats of survey of the property
describing the two ground floor commercial units indicated that area was a common element or a
limited common element. According to Revite, the area where the fence is located is either part of
the commercial unit itself or a limited common element. Moreover, under either scenario,
-9-
No. 1-20-0906
the Association has no right to refuse Revite permission “to construct a fence for security and
safety reasons just as other commercial entities in the neighborhood have done.”
¶ 28 Revite argues the trial court ignored the difference between the terms “limited common
elements” and “common elements” under the Act, the declaration and Illinois case law. According
to Revite, the fence is a permissible encroachment within the common elements classification.
Revite also contends the trial court ignored the significant difference made in the declaration
between the terms “commercial unit” and “residential unit.” Revite argues that when those terms
are properly interpreted, the Association has no right under either the Act or the declaration or
Illinois case law to bar the fence or require Revite to remove the fence.
¶ 29 The Act regulates the creation and operation of Illinois condominium associations. Board
of Managers of Weathersfield Condominium Ass’n v. Schaumburg Ltd. Partnership, 307 Ill. App.
3d 614, 619 (1999). The Act provides a condominium association’s board of directors with broad
authority to manage and administer condominium property. Schaffner v. 514 W. Grant Place
Condominium Ass’n, 324 Ill. App. 3d 1033, 1042-1043 (2001). The Act “is designed to encourage
associations to be self-governing,” and the members “are in the best position to make
determinations regarding restrictions.” Apple II Condominium Ass’n v. Worth Bank and Trust Co.,
277 Ill. App. 3d 345, 350 (1995). Although a condominium association is not free to ignore the
express language of its declaration, it does have the authority to interpret the covenants, conditions
and restrictions in its declaration. Neufairfield Homeowners Ass’n v. Wagner, 2015 IL App (3d)
140775, ¶ 19.
- 10 -
No. 1-20-0906
¶ 30 “To resolve controversies involving a condominium owner’s rights, courts must construe
the declaration, bylaws and any relevant provisions of the Act as a whole. [Citation.]” Stobe v.
842-848 W. Bradley Place Condominium Ass'n, 2016 IL App (1st) 141427, ¶ 13. The declaration
is a contract between Revite and the Association that governs how Revite is to use its commercial
units as well as those portions of the property that are defined as common elements and limited
common elements. See Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2014 IL App (1st)
111290, ¶ 75. In assessing Revite’s argument, we necessarily must interpret this contract.
The primary goal of contract interpretation is to give effect to the intent of the parties, as shown
by the language in the contract. Lease Management Equipment Corp. v. DFO Partnership, 392 Ill.
App 678, 685 (2009). In determining the intent of the parties, a court must consider the document
as a whole and not focus on isolated portions of the document. Premier Title Co. v. Donahue,
328 Ill. App. 3d 161, 164 (2002). The language of the contract should be given its plain and
ordinary meaning and the contract enforced as written. Virginia Surety Co. v. Northern Insurance
Co. of New York, 224 Ill. 2d 550, 556 (2007). The interpretation of a contract is a question of law
and may, therefore, be decided on a motion for summary judgment. Premier Title Co., 328 Ill.
App. 3d at 164.
¶ 31 By purchasing land subject to recorded restrictions, a property owner agrees to be bound
by those restrictions. Yorkshire Village Community Ass’n v. Sweasy, 170 Ill. App. 3d 155, 163
(1988); see also Siena at Old Orchard Condominium Ass’n v. Siena at Old Orchard, L.L.C.,
2018 IL App (1st) 182133, ¶ 21 (“[c]ondominium declarations are covenants running with the
land,” and “a covenant is a contract”). Generally, restrictive covenants affecting land rights will
- 11 -
No. 1-20-0906
be enforced according to their plain and unambiguous language. Levitt Homes Inc. v. Old Farm
Homeowner’s Ass’n, 111 Ill. App. 3d 300, 308 (1982). The proper interpretation of a covenant is
a question of law, and the covenant is to be construed so as to give effect to the actual intent of the
parties when the covenant was made. Cimino v. Dill, 92 Ill. App. 3d 345, 348 (1980). Covenants
should be strictly construed so that they do not extend beyond that which is expressly stipulated;
all doubts must be resolved in favor of the free use of property and against restrictions.
Fairways of Country Lakes Townhouse Ass’n v. Shenandoah Development Corp., 113 Ill. App. 3d
932, 935 (1983). Even though the covenant is strictly construed in favor of free use of property,
this rule may not defeat the obvious purpose of the restrictions or the clear intent of the parties, if
not precisely expressed. Freehling v. Development Management Group, 75 Ill. App. 3d 243, 248
(1979). In the absence of a definition within the covenant, words used in the declaration should be
given their ordinary and commonly understood meanings (Forest Glen Community Homeowners
Ass’n v. Nolan, 104 Ill. App. 3d 108, 112 (1982)), and the dictionary can be used as a resource to
determine the ordinary and popular meaning of a word (Bailey v. Illinois Liquor Control
Commission, 405 Ill. App. 3d 550, 555 (2010)). The extraordinary remedy of injunction shall not
issue to enforce a covenant that is indefinite and uncertain. Cleveland v. Martin, 218 Ill. 73, 90
(1905); Freehling, 75 Ill. App. 3d at 246.
¶ 32 Revite equivocates on whether it built the fence on the limited common elements
appurtenant to its commercial units. For example, Revite stated in its summary judgment motion
that the “fence was erected on a limited common element appurtenant to Revite’s commercial
units.” Revite also attached an email to its summary judgment motion wherein one of its principals
- 12 -
No. 1-20-0906
strenuously argued to the Association that the fence was built on the limited common elements.
In addition, Revite stated in its response to the Association’s summary judgment motion that
“Revite installed a fence on the limited common element appurtenant to Revite’s Units,” which
Revite referred to as a terrace, and terraces are defined as limited common elements pursuant to
article III, section (2)(a) of the declaration. Finally, Revite’s attorney conceded at a hearing on
Revite’s motion to stay enforcement of the summary judgment order that the fence was built on
the limited common elements. However, Revite argues on appeal that a question of material fact
exists regarding whether the location of the fence is a common element, a limited common
element, or a part of Revite’s commercial units.
¶ 33 Even if Revite did not concede before the trial court that the area where the fence was built
is classified as a limited common element, the plain language of the declaration establishes that
Revite built the fence on the limited common elements. Article I, section (l) of the declaration
defines the term “Limited Common Elements” as:
“That part of the Common Elements serving a single Unit exclusively as an inseparable
appurtenance thereto, including specifically such portions of the perimeter walls, floors
and ceilings, windows and doors, balconies and all fixtures and structures therein that lie
outside the Unit boundaries, pipes, ducts, flues, shafts, electrical wiring or conduits, or
other system or component part thereof that serve a Unit exclusively to the extent such
system or component part is located outside the boundaries of a Unit.”
Because the area where Revite built the fence exclusively served Revite’s commercial units, such
area was properly deemed a limited common element. See also 765 ILCS 605/2(s) (West 2018)
- 13 -
No. 1-20-0906
(defining the limited common elements in relevant part as “a portion of the common elements so
designated in the declaration as being reserved for the use of a certain unit or units to the exclusion
of other units”).
¶ 34 Article III, section 2(a) of the declaration states:
“2(a). Limited Common Elements. The Limited Common Elements shall consist of
a portion of the Common Elements so designated in the Declaration or on the Plat as being
reserved for the use of a certain Unit or Units to the exclusion of other Units. Any portion
of the Common Elements which by the terms of this Declaration or by its nature or location
is clearly intended to serve exclusively a certain Unit or Units (but less than all of the Units)
or the Unit Owner or Unit Owners thereof *** as may serve exclusively a single Unit or
group of Units shall be deemed a Limited Common Element. *** The Limited Common
Elements shall include, but shall not be limited to, the following: *** (c) any system or
component part thereof (including without limitation, air conditioning unit sleeves,
furnaces, heat pumps, fittings[,] housings, ducts, flues, shafts, electrical wiring and
conduits) which serves a Unit exclusively, to the extent that such system or component part
is located outside the boundaries of a Unit; (d) the Balconies/Terraces (if any); (e) yard
space; and (f) roof decks.”
Portions of condominium property such as a terrace, corridor or an outside walkway that are
located beyond the perimeter walls of Revite’s commercial units, but exclusively serve its units,
are deemed to be Limited Common Elements. It is unrefuted that the fence was built outside the
four corners of Revite’s commercial units and in an area between the city’s sidewalk and the front
- 14 -
No. 1-20-0906
walls of the condominium building. Revite itself referred to that area as a terrace. Accordingly, the
plain and unambiguous language of the declaration, coupled with the unrefuted facts, establish that
the fence was built on limited common elements.
¶ 35 Revite asserts that, because the plats for the property do not expressly label the area where
it constructed the fence as limited common elements, the area is part of Revite’s commercial units.
Contrary to Revite’s assertion, the declaration, as discussed above, clearly defines the area where
the fence was built as part of the limited common elements. Moreover, if an inconsistency existed
between the plats and the declaration, the declaration supersedes any inconsistency created by the
plats. See 765 ILCS 605/4.1(b) (West 2018) (“in the event of a conflict between the provisions of
the declaration and the bylaws or other condominium instruments, the declaration prevails except
to the extent the declaration is inconsistent with this Act”). The area where the fence is built is
simply unmarked on the plats and, as a result, there is no conflict and the language in the
declaration controls. In fact, Article III, section 2(a) of the declaration states that the limited
common elements are those portions of “the Common Elements so designated in the Declaration
or on the Plat.” The plat is not the only pertinent authority regarding how the condominium
property is classified; a portion of property can be designated as a limited common element by
either the declaration or the plats. Accordingly, because the declaration defines the area where the
fence was built as part of the limited common elements (and the plat is silent in defining that same
portion of property), that area is part of the limited common elements.
- 15 -
No. 1-20-0906
¶ 36 The fence is built on the limited common elements and any portion of the property that is
a limited common element is part of the common elements. Article I, section (g) of the declaration
defines the term “Common Elements” as:
“All portions of the Property except the Units, including, without limiting the generality of
the foregoing, the Parcel, all Limited Common Elements, stairways, corridors, roofs,
storage areas, laundries, mechanical rooms and equipment therein, refuse collection
system, central heating system, and structural parts of the improvements on the Parcel,
wherever located.”
See also 765 ILCS 605/2(e), 2(s) (West 2018) (stating that limited common elements are part of
the common elements). Furthermore, article IX, section (j) of the declaration provides:
“j. Nothing shall be altered or constructed in or removed from the Common
Elements except as constructed or altered by or with the permission of the Developer at
any time before the first annual meeting of the Unit Owners without the written consent of
the Association.”
Accordingly, Revite was required under article IX, section (j) of the declaration to obtain the
Association’s permission before building the fence.
¶ 37 Revite, however, suggests that the Association lacks the authority to determine what type
of modifications or alterations of the common elements are aesthetically appropriate. We disagree.
According to the record, a board member of the Association testified during her deposition
regarding the concerns the Association had about the appearance of the fence. Specifically, she
testified that Revite’s fence, which has fleur-de-lis points and is not coordinated with the building’s
- 16 -
No. 1-20-0906
existing fence, does not match the aesthetic of the building, which is ultramodern contemporary.
Article III, section 3(a) of the declaration states:
“[t]he use of the Common Elements and the right of the Unit Owners with respect thereto
shall be subject to and governed by the Act, the Condominium Instruments and the rules
and regulations of the Board.”
The declaration makes clear that the use of the common elements (which includes the limited
common elements) is subject to the regulation of the Board. Moreover, the preamble to the
declaration references the Association’s authority to protect the aesthetics of the condominium
property, stating:
“WHEREAS, the Owner desires and intends that the several Unit Owners,
mortgagees, occupants, and other persons hereafter acquiring any interest in the Property
shall at all times enjoy the benefits of and shall hold their interests subject to the rights,
easements, privileges, and restrictions hereinafter set forth, all of which are declared to be
in furtherance of a plan to promote and protect the cooperative aspect of the Property and
are established for the purpose of enhancing and perfecting the value, desirability, and
attractiveness of the Property.”
Reading article IX, section (j), which requires the Association’s permission before anything can
be altered or constructed in or removed from the common elements, in the context of the
declaration as a whole, it is clear that the Association has the authority to protect the appearance
and aesthetics of the condominium building because the Association has the authority to approve
- 17 -
No. 1-20-0906
or disapprove modifications, alterations, or construction on the common elements since those
projects impact, inter alia, the appearance of the condominium building.
¶ 38 While restrictive covenants are to be strictly construed and will be enforced only if they
are reasonable, clear and definite, 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. 400 Condominium Ass’n v. Gedo, 183 Ill. App. 3d 582, 584 (1989). 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. Id. Ultimately, the Association’s ability to
maintain aesthetic uniformity and appeal is established by article IX, section (j) of the declaration,
particularly when reading the declaration in its entirety.
¶ 39 Revite contends, without citation to any relevant authority, that its safety concerns about
crime and the presence of homeless people near the condominium property allow Revite to
circumvent requirements in the declaration and modify the common elements by building a fence
without the board’s permission.
¶ 40 Revite’s contention, however, is refuted by article IX, section (j) of the declaration, which,
as set forth above, provides that nothing can be altered or constructed in or removed from the
common elements without the Association’s written consent except as constructed or altered by or
with the permission of the developer before the first annual meeting of the unit owners. There is
no dispute that control of the condominium property had been turned over to the unit owners well
before the time Revite built the fence. Furthermore, Revite presented no evidence that the
developer consented to the fence that Revite built. To the contrary, the deposition testimony of the
- 18 -
No. 1-20-0906
developer’s representative showed that Revite asked the developer as it was finishing its work for
the building if a fence for Revite’s commercial units could be built, and the developer told Revite
more than once that Revite would have to ask the board for permission to construct a fence.
Moreover, the developer’s representative explicitly denied giving Revite permission to construct
the fence when the developer controlled the property before it was turned over to the unit owners.
¶ 41 Revite argues that it is subject only to those use restrictions contained in article IX, section
(b) of the declaration, which lists several restrictions applicable to the commercial units.
We disagree. The first sentence of article IX states that the article’s restrictions apply to the “Use
and Occupancy of Units and Common Elements,” without exception. Article IX contains
provisions that dictate how every owner is to use the units and common elements. There is no
rational basis to construe the declaration in a manner that exempts Revite from all the use
restrictions in article IX except those that appear in section (b). The declaration simply does not
say that Revite is only subject to section (b).
¶ 42 Moreover, exempting Revite from all the use restrictions other than those in section (b)
would lead to absurd results because then Revite would not be subject to rules such as those that
prevent owners from overloading electrical wiring, compel them to pay for damage they cause to
other units, require them to keep units in good condition and repair, and prevent them from raising
poultry or livestock or performing work that impairs the structural integrity of the building.
See Board of Education v. Orbach, 2013 IL App (2d) 120504, ¶ 19 (a contract should be construed
to avoid absurd results). Article IX, section (b) of the declaration is clearly intended to provide
carve-outs to restrictions that would otherwise interfere with a commercial unit owner’s ability to
- 19 -
No. 1-20-0906
use the commercial units for ordinary commercial purposes and prevent the commercial unit owner
from operating certain types of businesses, like a bar or nightclub, or a business that poses a danger
to Association residents. Furthermore, if Revite was exempt from all the use restrictions in article
IX except those that appear in section (b), then two separate classes of ownership would be created
in violation of section 18(b)(2) of the Act, which provides that “the association shall have one class
of membership.” 765 ILCS 605/18(b)(2) (West 2018).
¶ 43 Revite also argues that it is not subject to some or all of the declaration’s restrictions based
on the definition of the term “Units” in the declaration. Revite, however, has forfeited this
argument by raising it for the first time in its motion to reconsider. See Illinois Health Maintenance
Organization Guaranty Association v. Shapo, 357 Ill. App. 3d 122, 137 (2005) (one may not raise
a legal theory for the first time in a motion to reconsider); Holzer v. Motorola Lighting, Inc.,
295 Ill. App. 3d 963, 978 (1998) (a party may not raise a legal theory for the first time in a motion
to reconsider or on appeal).
¶ 44 Forfeiture aside, the declaration as a whole clearly establishes that the commercial units
are “Units” that are subject to the restrictions contained in article IX of the declaration.
For example, article IX, section (a) of the declaration provides that “[n]o Unit shall be used for
other than housing, except for the Commercial Units (101 and 102) and the related common
purposes for which the Property was designated.” The commercial units are “Units” under the
declaration; otherwise, the language in article IX, section (a) would be superfluous.
¶ 45 Furthermore, both exhibit A (the legal description of units) and exhibit B (the percentage
of ownership interest in the common elements) to the declaration refer to the commercial units 101
- 20 -
No. 1-20-0906
and 102 as units. Article III, section 3(b) of the declaration states that “[e]ach Unit Owner shall
own an undivided interest in the Common Elements, in the percentage set forth in Exhibit B
attached hereto and made part herein, as a tenant in common with all other Unit Owners.” A unit
owner is the owner of a unit who is allocated an ownership interest in the common elements. Revite
has been allocated an ownership interest in the common elements (as exemplified by exhibit B to
the declaration) and, thus, Revite is a unit owner and its commercial units are “Units.”
¶ 46 Treating Revite’s commercial units as “Units” is also consistent with the definition of that
term under the Act. Under the Act, “Unit” means a part of the property designed and intended for
any type of independent use. 765 ILCS 605/2(d) (West 2018). Revite’s commercial units are
clearly “Units” under the Act. To the extent the declaration’s definition of a “Unit” is inconsistent
with the Act, the Act controls. Section 2.1 of the Act states that “[u]nless otherwise expressly
provided in another Section, the provisions of this Act are applicable to all condominiums in this
State. Any provisions of a condominium instrument that contains provisions inconsistent with the
provisions of this Act are void as against public policy and ineffective.” 765 ILCS 605/2.1
(West 2018). For all these reasons, the trial court properly considered Revite’s commercial units
as “Units” that are subject to the declaration’s restrictions.
¶ 47 Revite also contends that the Association should not have been awarded mandatory
injunctive relief. The declaration, however, contemplates that equitable relief is appropriate to
address a violation of the declaration. Article XI of the declaration states:
“The violation of any rule or regulation adopted by the Association or the breach
of any covenant or provision herein or in the Bylaws contained shall, in addition to any
- 21 -
No. 1-20-0906
other rights provided for in this Declaration or the Bylaws, give the Association the right
(a) to enter on the Unit or any portion of the Property on which, or as to which, such
violation or breach exists and to summarily abate and remove, at the expense of the
defaulting Unit Owner, any structure, thing, or condition that may exist thereon contrary
to the intent and meaning of the provisions hereof, and neither the Association nor the
officers, employees, or agents thereof shall thereby be deemed guilty in any manner of
trespass; or (b) to enjoin, abate, or remedy by appropriate legal proceedings, either by law
or in equity, the continuance of any breach; ***.”
The declaration provides the Association with a specific set of remedies in the event of a breach
by one of its members, which includes the right to abate or remove any condition that violates the
declaration as well as the right to enjoin or abate a violation through legal proceedings.
¶ 48 Precedent also supports the issuance of injunctive relief to address the breach of a
restrictive covenant, like the breach at issue in this litigation. Restrictive covenants concerning the
use of land are in a somewhat unique category and, unless the restriction goes against public policy
or is subject to principles of waiver or estoppel, a violation will generally be enjoined by a court
of equity. Cordogan v. Union National Bank, 64 Ill. App. 3d 248, 253 (1978); see, e.g., Forest
Glen Community Homeowners Ass’n, 104 Ill. App. 3d at 112-13 (the breach of a covenant is
sufficient reason to enjoin its violation and a complainant need not show substantial comparative
injury). Moreover, the party in whose favor a restrictive covenant runs is prima facie entitled to its
enforcement since the mere breach of the covenant is sufficient grounds to enjoin its violation.
Amoco Realty Co. v. Montalbano, 133 Ill. App. 3d 327, 332 (1985).
- 22 -
No. 1-20-0906
¶ 49 The Association does not need to show a substantial injury to justify its request for
injunctive relief, particularly when the declaration states that breaches can be addressed through
injunctive relief. For example, in Yorkshire Village Community Ass’n, a unit owner built two
flower box planters. 170 Ill. App. 3d at 157-58. While in the process of constructing the planters,
the unit owner was advised by the president of the community association that he was required to
obtain board permission prior to constructing the planters. Id. The unit owner ignored the board
president and moved forward with construction. Id. The community association then filed a
lawsuit seeking injunctive relief. Id. The court, in examining the association’s covenants, held that
the association was vested with the authority to reasonably interpret its own declaration and
restrictions. Id. at 159. The court stated that the purpose of the association’s covenants (specifically
its architectural controls) was to provide the association with control over modifications that
impact the useability and appearance of the property and that, as a general matter, restrictive
covenants for condominium and homeowners’ associations are designed solely to promote a
certain stability in appearance, quality of environment, and a certain amount of architectural
uniformity. Id. at 160. As a result, the court sustained an injunction compelling the removal of the
flower box planters. Id. at 157, 163.
¶ 50 Here, while in the process of constructing the fence, Revite was warned by a board member
that it should stop because no plans for the fence were submitted to or approved by the board.
Revite ignored that warning and completed construction of the fence. As in Yorkshire Village
Community Ass’n, the purpose of the covenants at issue is to provide the Association with control
over a modification that impacts the useability and the appearance of the exterior common
- 23 -
No. 1-20-0906
elements, and the Association has the right to compel the removal of a modification made in
violation of the declaration.
¶ 51 In Saddle Hill Community Ass’n v. Cavallari, a unit owner constructed a fence without first
submitting plans and obtaining the permission of the association’s board of directors. 150 Ill. App.
3d 134, 135 (1986). The declaration stated that “[n]o building, fence, wall or other structure shall
be commenced, erected, or maintained” until specific construction plans are submitted to and
reviewed by an architectural review committee. Id. at 136. This court affirmed the trial court’s
decision to issue an injunction compelling the removal of the fence on the basis that the declaration
evidenced an intention to grant a committee the power to approve or disapprove all architectural
construction or alterations in the community. Id. at 136-37. Similarly here, the declaration clearly
evidences an intent that the Association be granted the power to approve modifications that are
made to the common elements and, like the homeowner in Saddle Hill Community, Revite violated
this restriction when it installed the fence without permission. An injunction is an appropriate
remedy to address the violation of the Association’s architectural control.
¶ 52 In sum, article III, section 3(a) of the declaration states that the right of owners to use the
common elements (and by extension the limited common elements) is governed by the
condominium instruments. Article IX, section (j) of the declaration provides that nothing can be
altered or constructed in or removed from the common elements without the written consent of the
Association except as constructed or altered by or with the permission of the developer before the
first annual meeting of the unit owners. Article XI of the declaration provides that the Association
is authorized to enjoin, abate, or remedy by appropriate legal proceedings, either by law or in
- 24 -
No. 1-20-0906
equity, any violation of the declaration. When Revite constructed the fence on the limited common
elements (i.e., a subpart of the common elements), Revite was required to obtain the permission
of the Association. Its failure to do so was an unequivocal breach of the declaration, to which the
Association was authorized to abate through a lawsuit that seeks injunctive relief.
¶ 53 We conclude that the trial court properly entered summary judgment in the Association’s
favor and correctly denied Revite’s request for summary judgment.
¶ 54 B. Questions of Material Fact
¶ 55 Revite argues that the Association was not entitled to summary judgment because genuine
issues of material fact existed and could only have been resolved during trial. According to Revite,
questions of material fact existed regarding (1) the location of the fence because neither the
declaration nor the plats designated the area between the city sidewalk and the front windows of
Revite’s commercial units as a limited common element, a common element or a part of Revite’s
units, (2) whether the fence was an obstruction of the common elements, (3) whether security and
safety issues existed and thus the medical clinic’s need for safety overcame the Association’s
objection to the fleur-de-lis decorations of the fence, and (4) whether the developer gave Revite
permission to install the fence before the developer turned the building over to the unit owners.
¶ 56 We reject Revite’s argument. Our discussion above addressed each of Revite’s four issues
and establishes that no genuine issue of material fact exists that would preclude the entry of
summary judgment in favor of the Association.
- 25 -
No. 1-20-0906
¶ 57 C. Attorney Fees
¶ 58 Revite argues that no basis in the law or contract supported the shifting of attorney fees
from the Association to Revite. Specifically, Revite argues that (1) section 9.2 of the Act
(765 ILCS 605/9.2 (West 2018)) does not allow for fee shifting here because Revite did not violate
the Act; (2) the Association was not entitled to attorney fees based on its declaration because the
Association failed to comply with all the terms and conditions of article XI of the declaration,
which required the Association to give Revite a notice of violation of the declaration followed by
a disciplinary hearing with an opportunity to present evidence of any alleged violation; (3) the
$43,621.68 attorney fee award to the Association was unreasonable and unsupportable because the
Association failed to produce records of the daily entries counsel made into the computer regarding
the time spent, the service rendered and the date on which the service was rendered; and (4) the
insignificance of the issue litigated here—i.e., the Association’s objection to the fleur-de-lis
decoration situated at the top of the vertical posts of the fence—does not justify the unreasonable
amount of attorney fees awarded.
¶ 59 The Association sought an award of attorney fees pursuant to section 9.2(b) of the Act,
which provides:
“Any attorneys’ fees incurred by the Association arising out of a default by any unit
owner, his tenant, invitee or guest in the performance of any of the provisions of the
condominium instruments, rules and regulations or any applicable statute or ordinance
shall be added to, and deemed a part of, his respective share of the common expenses.”
765 ILCS 605/9.2(b) (West 2018).
- 26 -
No. 1-20-0906
¶ 60 When construing a statute, the court’s primary objective is to ascertain and give effect to
the legislature’s intent, best indicated by the plain and ordinary language of the statute. Hernandez
v. Lifeline Ambulance, LLC, 2019 IL App (1st) 180696, ¶ 10. In interpreting a statute, no part
should be rendered meaningless or superfluous. Id. The court is not at liberty to depart from the
plain language of a statute by reading into it exceptions, conditions, or limitations that the
legislature did not express. Id.¶ 61 First, Revite contends that, because the Association did not assert a statutory cause of
action, the Act does not provide the Association with authority to recover attorney fees. This
argument ignores the plain language of the statute, which states that attorney fees incurred due to
a default under the declaration (i.e., the condominium instruments) are recoverable. The statute
does not say that fees are only recoverable if a unit owner defaults under the statute; instead, it
specifically and unequivocally refers to a breach of the condominium instruments. If attorney fees
were only recoverable for a statutory cause of action, a portion of the statute will be rendered
meaningless.
¶ 62 The Association not only has a statutory right to attorney fees, but it has a contractual right
to attorney fees under the declaration. Article XI of the declaration expressly provides that the
Association can recover attorney fees if forced to initiate legal action against a defaulting unit
owner:
“Any and all costs and expenses incurred by the Association in the exercise of its authority
as granted in this Article XII, including but not limited to court costs, reasonable attorneys’
- 27 -
No. 1-20-0906
fees as determined by a court of competent jurisdiction, and cost of labor and materials,
shall be paid by the Unit Owner in violation ***.”
Thereafter, article XI of the declaration provides:
“Any Unit Owner in default hereunder or under the provisions of the Bylaws or any
rule or regulation adopted by the Association shall pay to the Association, as an agreed
Common Expense with respect to his Unit, all attorneys’ fees incurred by the Association
in enforcing the provisions of the Bylaws, this Declaration, or the rules and regulations of
the Association as to which the Unit Owner is in default.”
¶ 63 Revite is responsible for the attorney fees the Association incurred enforcing the
declaration against it. In Yorkshire Village Community Ass’n, the court held that condominium
declarations and bylaws are covenants running with the land and the same is true of a covenant to
pay attorney fees for the enforcement of other covenants. 170 Ill. App. 3d at 163. See also
334 Barry in Town Homes, Inc. v. Fargo, 205 Ill. App. 3d 846, 850-51 (1990).
¶ 64 Second, Revite contends that the Association is not entitled to attorney fees because it did
not hold an internal disciplinary hearing before filing its lawsuit. As an initial matter, Revite failed
to support this contention with admissible evidence, and instead made a bare unsupported
statement without reference to an affidavit, transcript or other evidentiary material. Any factual
dispute must be established by affidavits or deposition testimony of evidentiary facts which
support the position of the opposing party. Phillips v. United States Waco Corp., 163 Ill. App. 3d
410, 416 (1987). Conclusions, unsupported by facts admissible in evidence, do not create a genuine
material issue of fact. Lesnik v. Estate of Lesnik, 82 Ill. App. 3d 1102, 1106 (1980).
- 28 -
No. 1-20-0906
¶ 65 Furthermore, Revite essentially asserts that the Association did not comply with a condition
precedent, but Revite fails to satisfy Illinois Supreme Court Rule 133(c), which provides:
“In pleading the performance of a condition precedent in a contract, it is sufficient to allege
generally that the party performed all the conditions on his part; if the allegation be denied,
the facts must be alleged in connection with the denial showing wherein there was a failure
to perform.”
¶ 66 In its amended complaint, the Association alleged that it “has performed all of its
obligations under the terms and conditions of the declaration,” and Revite responded with nothing
more than a blanket denial. Likewise, Revite did not assert any affirmative defense that raised the
alleged deprivation of an internal disciplinary hearing. A general denial to an allegation of the
performance of a condition precedent in a contract is treated as an admission of that performance.
Deutsche Bank National Trust Co. v. Roongseang, 2019 IL App (1st) 180948, ¶ 23. To comply
with Rule 133(c), a party must set forth the specific conditions that the opposing party failed to
perform. Id. The specific denial required by Rule 133(c) may be contained in an affirmative
defense. Id. Revite, having failed to properly address the hearing issue during the summary
judgment proceedings or assert the failure to comply with a condition precedent in accordance
with Rule 133(c), has forfeited the argument that it was deprived of a prelitigation disciplinary
hearing.
¶ 67 However, even assuming that Revite was deprived of a hearing and properly presented that
issue to the trial court, that deprivation would not have any bearing on the right to recover attorney
fees under the Act (wherein there is no requirement of a hearing). In Board of Managers of Village
- 29 -
No. 1-20-0906
Square I Condominium Ass’n v. Amalgamated Trust & Savings Bank, the court held that a suit for
injunctive relief and attorney fees was not an attempt to levy a reasonable fine and the mandatory
provision for notice and an opportunity to be heard under the Act was not relevant to a claim for
injunctive relief that sought to also recover attorney fees. 144 Ill. App. 3d 522, 529 (1986).
¶ 68 Finally, Revite challenges the amount of the Association’s attorney fee award, which was
entered after the trial court heard testimony from the Association’s attorney at an evidentiary
hearing. According to Revite, the award was not supported by admissible evidence, and this case
is too insignificant and unimportant to justify the attorney fee award that was entered in the
Association’s favor.
¶ 69 A court of review may not reverse an award of attorney fees merely because it may have
reached a different conclusion. U.S. Bank N.A. v. Randhurst Crossing LLC, 2018 IL App (1st)
170348, ¶ 78. When the trial court’s findings of fact depend upon the credibility of a witness, the
reviewing court should defer to the trial court’s findings unless they are against the manifest weight
of the evidence. Aliano v. Sears, Roebuck & Co., 2015 IL App (1st) 143367, ¶ 12.
¶ 70 Notably, there is no transcript for the evidentiary hearing on the petition for attorney fees.
“An appellant has the burden to present a sufficiently complete record of the proceedings at trial
to support a claim of error, and in the absence of such a record on appeal, it will be presumed that
the order entered by the trial court was in conformity with law and had a sufficient factual basis.
Any doubts which may arise from the incompleteness of the record will be resolved against the
appellant.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). Because there is no transcript of the
hearing on the Association’s petition for attorney fees, there is no basis for setting aside the fee
- 30 -
No. 1-20-0906
award entered by the trial court. Ultimately, after hearing evidence, the trial court entered an
attorney fee award that it believed was reasonable. The trial judge, who handled this case from its
inception and through the evidentiary hearing on attorney fees, was best suited to determine an
appropriate attorney fee award.
¶ 71 III. CONCLUSION
¶ 72 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 73 Affirmed.
- 31 -