Illinois Court Decision Supports HOA Authority Over Common Area and Lake Access

Illinois Court Decision Supports HOA Authority Over Common Area and Lake Access

If you are a board member of a lake community association in Illinois, you have likely faced the challenge of balancing owner enjoyment with protecting the shared use of the lake. But what happens when your declaration and bylaws do not contain express rule-making authority that grants the community association board the power to create rules for the common areas?  In Ripsch v. Goose Lake Ass’n, 2013 IL App (3d) 120319, 989 N.E.2d 752, 371 Ill. Dec. 162, 2013 WL 1963923, the Illinois Court of Appeals addressed this question. It held that a homeowners association had the inherent power to create and enforce reasonable rules and regulations for using the common areas, including the lake.

Ripsch v. Goose Lake Ass’n clarifies that community associations have the inherent authority to adopt reasonable rules governing common areas, including lakes.  In that case, an owner tried to block enforcement of a rule banning Tritoon boats, claiming the homeowners association lacked authority to regulate the lake. As discussed below, the court disagreed, confirming that community associations can adopt reasonable rules to protect common areas, such as the lake.

Facts

Kirk Ripsch owned a single-family residence on a lot abutting Lincoln Lake. Ripsch purchased the property on June 23, 1979 and became a member of the Goose Lake Association, a common interest community association, compromised of owners living on or adjacent to Goose Lake, Beaver Lake, Half Moon Lake, and Lincoln Lake in Grundy County, Illinois. The lakes, including Lincoln Lake, are common areas controlled by the homeowners association. When Ripsch purchased his property, the only recorded document containing restrictions on his use of the property was a document titled “Protective Covenants and Restrictions” recorded August 17, 1971. The restrictive covenants contained a list of general restrictions on the use of each property owner’s land and provided in pertinent part:

1. 9. No boat pier may extend more than two (2) feet into the waters of the lake.
   10. Each property owner becomes an Associate Member of the Goose Lake Association upon purchase and shall maintain said membership by payment of an annual maintenance charge, not to exceed $25.00, unless said maintenance charge is increased by a vote of the members and associate members of the Association.

The homeowners association enacted and published a set of bylaws under 805 ILCS 105/102.25 of the Illinois General Not For Profit Corporation Act. The bylaws were never recorded. When Ripsch purchased his property, he was provided a copy of the bylaws and the HOA rules in effect on the date of purchase. Article II, section XIV of the HOA bylaws, provided that “all members are bound by the current Goose Lake Association Rules.” At various times during Ripsch’s membership in the homeowners association, the board of directors promulgated and published specific rules purporting to regulate activities on the lakes and other common areas to the membership. These rules addressed fishing, swimming, boating, camping, and guest usage. The stated purpose of the HOA rules was to promote safety on the lakes and waterways and in the community, prevent over-fishing and crowding on the water, and provide an overall order to the use of the lake and other common areas.

In December 2007, the homeowners association amended the rules and regulations to prohibit pontoon boats with more than two pontoons on Lincoln Lake. When Ripsch was informed of the rule limiting pontoon boats on Lincoln Lake, he told the board that he intended to use a Tritoon boat (a boat with three pontoons) on Lincoln Lake. The HOA responded that it would enforce its rules through fines and/or expulsion from the lake, which led Ripsch to file a lawsuit.

The trial court ruled in favor of the homeowners association. The court relied on the Restatement (Third) of Property: Servitudes. Specifically, comment b of section 6.7 of the Restatement provides that “[e]ven in the absence of an express grant of authority, an association enjoys an implied power to make rules in furtherance of its power over the common property.” Further, the trial court observed that the Restatement stated that “[e]xcept as limited by statute or the governing documents, a common-interest community has an implied power to adopt reasonable rules to * * * govern the use of common property.” Restatement (Third) of Prop: Servitudes § 6.7(1)(a) (2000). The trial court noted that the Restatement is not binding on Illinois courts but has been found to be persuasive. The court held that, under the analysis articulated in the Restatement, the facts in the instant matter established that the homeowners enacted the rule limiting the size of pontoon boats on Lincoln Lake in its authority to impose reasonable restrictions on the use of common property.

The Court held that the HOA had inherent Rule Making Authority

 On appeal, Ripsch initially argued that he had riparian rights to use the lake. Riparian rights, which allow an adjacent landowner to make reasonable use of the surface of a nonnavigable lake, require that the party asserting riparian rights own at least a portion of the lake bed. Alderson v. Fatlan, 231 Ill.2d 311, 319, 325 Ill.Dec. 548, 898 N.E.2d 595 (2008). Given that Ripsch had no ownership of any portion of the lake bed, the Court of Appeals held that he had no riparian rights to use the lake surface.

Ripsch also argued that a homeowners association cannot restrict the use of property unless those restrictions are expressly stated in the recorded declarations or bylaws. He cited Krueger v. Oberto, 309 Ill.App.3d 358, 369, 243 Ill.Dec. 712, 724 N.E.2d 21 (1999), where the court held that use restrictions must be part of the recorded chain of title to be enforceable. Ripsch further relied on Westfield Homes, Inc. v. Herrick, 229 Ill.App.3d 445, 170 Ill.Dec. 555, 593 N.E.2d 97 (1992), arguing that restrictive covenants should be strictly interpreted in favor of the property owner’s right to use their property. Based on these principles, Ripsch argued that the lake association could not enforce the rules banning pontoon boat restrictions since they were not in the recorded restrictive covenants.

The appellate court rejected this argument, clarifying that the legal precedent Ripsch relied upon applies only to restrictions on private lots, not common areas like the lake. The court explained that, as a general rule, the board of directors of a common interest community has broad authority to adopt rules to govern the association’s day-to-day operations. In Board of Directors of 175 East Delaware Place Homeowners Ass’n v. Hinojosa, 287 Ill.App.3d 886, 890, 223 Ill.Dec. 222, 679 N.E.2d 407 (1997), for example, the court confirmed that homeowners associations have broad powers to regulate the use of common elements. Because no Illinois appellate court decision directly addressed whether a community association could regulate common areas without explicit authority in the restrictive covenants, the court relied on the Restatement (Third) of Property: Servitudes. The Restatement explains that while homeowners associations have no inherent power to regulate individually owned property, they have implied authority to adopt reasonable rules governing common areas. The court agreed with this approach, emphasizing that it would be absurd to assume a common interest community association is responsible for managing and maintaining common property but lacks the authority to control its use. Accordingly, the court affirmed that the homeowners association had the implied authority to enact reasonable boating rules for the shared lake.

Importantly, the court noted that this ruling does not give homeowners associations unlimited power. Homeowners still have the right to challenge whether a particular rule is reasonable. In this case, Ripsch did not dispute the reasonableness of the HOA’s ban on pontoon boats. By failing to contest the rule’s substance, Ripsch effectively conceded that the restriction was reasonable.

Conclusion

Ripsch v. Goose Lake Ass’n, 2013 IL App (3d) 120319, 989 N.E.2d 752, 371 Ill. Dec. 162, 2013 WL 1963923 reinforces a critical point for Illinois common interest community associations: even if your restrictive covenants are silent on rulemaking authority, the board likely has inherent power to adopt reasonable rules for common areas. The rules and regulations must be applied fairly and align with your responsibility to manage common elements. If your homeowners association is unsure about its authority or needs help drafting enforceable, well-reasoned rules, Hirzel Law is here to help. We work with homeowners associations to draft clear, enforceable rules and regulations that protect your community association and stand up in court.

 

 

Kevin Hirzel is the Managing Member of Hirzel Law, PLC, where he focuses his practice on community association law, condominium law, homeowners association law, real estate law, and Fair Housing Act compliance. He is a Fellow in the prestigious College of Community Association Lawyers (CCAL), an honor held by fewer than 200 attorneys nationwide. Mr. Hirzel serves on the CCAL National Board of Governors and was previously a member of the Community Associations Institute (CAI) Board of Trustees. Best Lawyers, Leading Lawyers, and Super Lawyers have recognized Mr. Hirzel. He is also the author of Hirzel’s Handbook: How to Operate an Illinois Condo or HOA, available on Amazon.com. Mr. Hirzel has been featured in major media outlets such as CBS, CNBC, Fox News, Fox Business News, NPR, Newsmax, and The Wall Street Journal. His insights have also been showcased on programs like The Dan Abrams Show (SiriusXM Radio), Dr. Drew Midday Live (KABC Radio), and the Law & Crime Network. A sought-after speaker, Mr. Hirzel frequently lectures at state and national conferences, sharing his deep knowledge of community association law. Hirzel Law, PLC, represents common interest community associations, condominium associations, homeowners associations, and townhome associations in Illinois. Hirzel Law, PLC has offices in Chicago, Downers Grove, and Skokie.  Kevin Hirzel can be reached at (312) 552-7669 or kevin@hirzellaw.com.