Illinois Court Orders Condo Owner to Install Carpeting Due to Noise Complaints

Illinois Court Orders Condo Owner to Install Carpeting Due to Noise Complaints

A condominium association’s governing documents contain restrictive covenants that can help preserve property values, protect shared resources, and ensure a harmonious living environment. A condominium association should enforce these restrictive covenants uniformly to ensure there is no disparate treatment of unit owners. Board of Directors of Plum Creek Condominium Ass’n v. Oleg Lorman, 2013 IL App (1st) 121198-U, revolves around a dispute over the enforcement of a restrictive covenant by the Board of Directors of the Plum Creek Condominium Association (“the Board”). The appellate court’s decision provides important insights into how Illinois courts interpret restrictive covenants, and the enforcement of an association’s governing documents. This article will discuss the court’s decision in Plum Creek and will offer practical guidance condominium associations can use to enforce their governing documents.

Background

Oleg Lorman (“Defendant”) owned a unit in the Plum Creek Condominium Association. The association was subject to a declaration and additional rules outlined in the unit owners’ manual. Article XVII, Section 7 of the Declaration imposed soundproofing requirements, mandating wall-to-wall carpeting except in kitchens and bathrooms. Any deviations required written Board approval.

In 2001, Defendant applied for permission to install laminate flooring. In the application, Defendant agreed to adhere to soundproofing standards and acknowledged that noise complaints could lead to a requirement to install carpeting. In May 2001, the Board approved the application in a written approval letter to Defendant but emphasized that if noise complaints arose, wall-to-wall carpeting might still be required. Defendant then installed laminate floors.

In 2009, the Board received noise complaints from neighbors regarding Defendant’s unit. In September 2009, the association manager notified Defendant by letter that the Board had found him guilty of the noise violation and had assessed a $500 fine. The letter provided the following:

“However, the fine will be suspended if you correct the violation within thirty days from the date of this letter. The board feels that installing sizable area rugs will eliminate the noise nuisance. However, if that is not sufficient, wall to wall carpeting will be required.”

Defendant installed area rugs following the hearing but failed to resolve the noise issues. Additional complaints prompted the Board to demand wall-to-wall carpeting, as per the Declaration’s requirements. Defendant refused and the Board filed for injunctive relief.

Trial Court’s Decision

The trial court ruled in favor of Defendant. The trial court found that in the May 2001 letter, the Board reserved for itself the right to require the defendant to either install wall to wall carpeting or install area rugs if complaints were registered. The trial court found that in the September 2009 letter, the Board made its choice by requiring Defendant to install area rugs in the unit. The trial court found that Defendant complied with that requirement and the Board had no further remedies.

Appellate Court’s Decision

On appeal, the appellate court reversed the trial court’s decision and found in favor of the Board. The appellate court found that the Board’s May 2001 letter which approved Defendant’s application to install laminate flooring did not supersede the wall to wall carpeting requirement that was set forth in the Association’s rules. Furthermore, the appellate court found the May 2001 letter was not a binding contract between the Board and Defendant.

In contrast, the application that Defendant submitted to the Board was a contract between the parties and the application explicitly set forth that “should complaints be registered by other residents because of the noise created by the hardwood flooring, [Defendant] may be requested to carpet either wall to wall or area rug the floors in question.” The appellate court used a similar analysis to determine that the September 2009 letter was also not a binding agreement between the Board and Defendant and was not a waiver of the covenant that required the installation of wall to wall carpeting.

The appellate court found that the soundproofing covenant was a restrictive covenant that runs in favor of the Board and the application clearly provided that the Board intended to enforce the soundproofing covenant. The appellate court concluded that the Defendant breached this restrictive covenant and issued a permanent injunction which required Defendant to comply with the covenant by installing wall to wall carpet.

Practical Guidance

The appellate court’s decision in Plum Creek highlights the importance of enforcing the restrictive covenants set forth in an association’s governing documents. The restrictive covenants set forth in the governing documents serve to protect communal living standards. As seen in Plum, Illinois courts will enforce these restrictive covenants when the covenants are clear and unambiguous. Accordingly, an association should have its attorney review the association’s governing documents to ensure the provisions set forth in the documents are unambiguous and clearly identify the obligations of the unit owners.

Furthermore, the appellate court’s decision in Plum Creek underscores the fact that approval letters are not contracts and may not override the restrictive covenants set forth in an association’s governing documents. An association should have its attorney draft or review all approval letters prior to sending to a unit owner. While an approval letter may contain conditions upon approval, similar to the conditions set forth in the letters sent by the Board to Defendant in Plum Creek, the approval letter should set forth the pertinent provisions in the association’s governing documents that contain the restrictive covenants the association is attempting to enforce. Failure to include these restrictive covenants in the approval letter could cause confusion to the unit owner and could lead to costly litigation like in Plum Creek.

Lastly, the appellate court in Plum Creek found that the application between Defendant and the Board was a contract. As such, an association should carefully review any application to ensure that the covenants in the application match the covenants found in the association’s governing documents. An application that deviates from the association’s governing documents could lead to a situation similar to Plum Creek where the unit owner is unsure how to comply with the association’s requests. As such, an association should have its attorney review all applications to ensure the covenants set forth in the application are identical to the covenants found in the association’s governing documents.

Conclusion

An association should seek to enforce the restrictive covenants found in the association’s governing documents. The appellate court’s decision in Plum Creek highlights the fact that Illinois courts will enforce an association’s restrictive covenants when the covenants are clear and unambiguous. Furthermore, the Plum Creek decision underscores the fact that approval letters will not override the covenants found in an association’s governing documents. Accordingly, an association should have its attorney (i) review the association’s governing documents to ensure the covenants found in the governing documents clearly identify the obligations of the association and the unit owner, and (ii) draft and review all approval letters prior to sending to a unit owner. The attorneys at Hirzel Law, PLC are experienced condominium attorneys who can review an association’s governing documents and approval letters to ensure the responsibilities and obligations of the unit owner and the association are clearly outlined therein.

 

Jeremy Fernando is an Associate Attorney at Hirzel Law, PLC. Mr. Fernando is licensed to practice law in the State of Illinois. He concentrates his practice on community association law, condominium law, homeowners association law, and real estate law. Mr. Fernando’s legal career includes serving in corporate practice where he represented insurance companies and institutional investors in U.S. and cross-border private placements of securities, including transactions in the Netherlands, England, Ireland, Australia, and Germany. Mr. Fernando earned his Juris Doctor from Marquette University Law School, where he graduated with honors and ranked in the top 15% of his class. He also served as an Associate Editor of the Marquette Law Review. Mr. Fernando is committed to providing effective legal representation to his clients and is passionate about helping communities navigate complex legal challenges. He may be reached at 312-552-7669 or jfernando@hirzellaw.com.