Illinois homeowners associations cannot enforce a rule that contradicts their recorded declaration. This was the central issue in Kubik as Tr. of Sarah J. Kubik Declaration of Tr. Dated Feb. 1, 2002 v. Darien Club Owners Ass’n (2025 IL App (3d) 240546-U), a dispute arose as to whether the installation of fencing was permitted as the HOA’s rules and regulations conflicted with the declaration. In this case, members of the Darien Club Owners Association (“homeowners association”) filed a lawsuit seeking to prevent the board from allowing perimeter fencing, citing a fencing prohibition in the HOA’s rules and regulations. However, because the homeowners association’s declaration did not contain a blanket prohibition on fencing, the trial court granted summary judgment in favor of the HOA, and the appellate court affirmed. Although the Kubik as Tr. of Sarah J. Kubik Declaration of Tr. Dated Feb. 1, 2002 v. Darien Club Owners Ass’n case cannot be cited as binding authority, as it is an unpublished opinion, it reaffirms that a community association’s declaration will control over any conflicting provisions of the rules and regulations.
Background of Kubik v. Darien Club Owners Association
Plaintiffs/Appellants, Sarah and Jeffrey Kubik (“Kubiks”), moved into the homeowners association in 1995. The homeowners association is governed by its Declaration, Manual, and the Darien Club Owners Association Bylaws. Article 13 of the Declaration controls the architectural aspects of building within the community association.
Section 13.03 of the Declaration creates the homeowners association’s Design Review Committee and gives the Committee the “right and power to promulgate and amend from time to time written architectural standards, policies, procedures, and guidelines *** governing the construction, location, landscaping, and design of improvements.” Section 13.04 of the Declaration states that “no improvements of any nature whatsoever shall be commenced, constructed, altered, added to or maintained upon any part of the Premises in violation of the Standards.” Section 13.05 of the Declaration provides, in relevant part, as follows:
“no (i) construction of improvements, including, without limitation, Homes, driveways, walkways, decks, antennae, mailboxes, satellite dishes, outbuildings, fences or sheds *** shall be commenced or maintained by any Owner *** unless and until *** the plans and specifications *** shall have been submitted to and approved, in writing, by the Design Review Committee.”
The Design Review Committee created the homeowners association’s manual (“Manual”). Section 5.6 of the Manual stated that “fences of any type are prohibited on Lots, except as required for in-ground pools.” In 2019, homeowners John and Marie Becker (the “Beckers”) submitted a request to the Design Review Committee for approval to install a fence around their lot. The Design Review Committee denied the Beckers’ request on multiple occasions, citing Section 5.6 of the Manual. As a result, John Becker ultimately ran for and was elected to the HOA Board. On November 8, 2021, the Design Review Committee amended Section 5.6 of the Manual (which has been in effect since 1998) to delete the blanket prohibition on fencing.
On March 8, 2022, the Kubiks filed their lawsuit against the homeowners association and board members seeking injunctive relief. In their lawsuit, among other things, the Kubiks alleged that the Association’s Board improperly authorized perimeter fencing when it amended Section 5.6 of the Manual. In response, the homeowners association filed a counterclaim for declaratory relief alleging that it could permit perimeter fencing and that the Design Review Committee lacked the authority to prohibit fences altogether, as fences were permitted under the Declaration.
Both the Kubiks and the Association filed motions for summary judgment on whether the Design Review Committee could draft rules prohibiting fencing altogether. The Kubiks argued that Section 5.6 of the Manual (prior to being amended) properly banned fencing. The Association argued that because the Declaration allowed fencing (so long as approved by the Committee), the Manual cannot contain an outright ban on fencing.
On October 27, 2023, the trial court entered partial summary judgment in favor of the homeowners association. In doing so, the Appellate opined as follows: “the Declaration allowed all fencing so long as the property owners received Committee approval and that neither the Association nor the Committee could create rules prohibiting fencing that would otherwise comply with the aesthetic standards and goals of the Association.” The trial court further stated that “there is not intent from the declaration to have a complete prohibition” as to fencing. The Kubiks then filed their appeal.
Illinois Court of Appeals holds that HOA Cannot Prohibit Fencing by Rule Alone
The issue on appeal was how to interpret the Declaration and Manual with respect to fencing. In interpreting the language contained in the Declaration and Manual, the Appellate Court stated that “community declarations should be interpreted according to the principles of contract interpretation” and that the “primary objective is to ascertain and give effect to the parties’ intentions as indicated in the language of the Declaration.” The Appellate Court further stated that it would “construe the governing documents as a whole and give purpose to every provision.” However, the Appellate Court went on to state that restrictive covenants affecting use of land “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.”
In its analysis, the Appellate Court reviewed the homeowners associations’ governing documents to determine the community’s intent. In doing so, the Appellate Court applied the “plain and ordinary meaning” of the language contained within the Declaration. As the Appellate Court stated, “if the terms are clear and unambiguous, we will apply those terms as written unless such application is against public policy.” The Appellate Court did not find the provisions contained in Article 13 of the Declaration to be ambiguous. Rather, the Appellate Court found that:
While conditions have been placed on improvements, there is no outright prohibition in the Declaration against most improvements on a lot. A plain reading of these provisions is that improvements are permitted if the homeowner obtains approval prior to commencing construction of them. The language in sections 13.04 and 13.05 does not create the blanket prohibition that the Kubiks advocate. Rather, it places a condition precedent on all permitted improvements. If the intent was to place a blanket ban on certain improvements, the Declaration would explicitly state that prohibition… In fact, section 13.03 of the Declaration identifies several explicit prohibitions, including, antennae, reflective windows, and exterior projections. If the drafters of the Declaration intended to prohibit any other improvements, those improvements would be included in the provision that makes these specific prohibitions…No such prohibition on fencing exists in the Declaration, and we will not create a blanket prohibition when one is not already present.
Therefore, the Appellate Court found that the Manual (prior to its amendment) conflicted with the Declaration by prohibiting all fencing other than those fences surrounding a pool. The Appellate Court continued by opining that the “Board and any committees must operate in a manner that does not conflict with the Declaration.” Here, the Appellate Court found that the language of the Association’s Declaration allowed the Design Review Committee “to create standards for permitted improvements, not to ban them completely.” As such, the Appellate Court affirmed the trial court’s ruling in favor of the Association.
Why This Case Matters for Community Associations
Kubik as Tr. of Sarah J. Kubik Declaration of Tr. Dated Feb. 1, 2002 v. Darien Club Owners Ass’n serves as an important reminder for Illinois community associations that the declaration will control in the event of a conflict with the rules and regulations. Community association board members must be mindful not to adopt rules that conflict with the declaration. In addition, members of an architectural review committee must also be aware not to draft policies that conflict with the declaration. Such rules and policies may increase or decrease owners’ rights regarding their lots or units and may be subject to legal challenge. Rather, community associations must follow the proper procedures when attempting to place certain restrictions on owners regarding the use of their lots and units.
At Hirzel Law, PLC, we regularly advise and assist condominium associations and common interest community associations in amending and enforcing their governing documents, including matters related to the community’s overall exterior aesthetic (such as issues pertaining to landscaping, driveways, roofing, painting, and fencing) while also ensuring compliance with the Illinois Condominium Property Act and the Illinois Common Interest Community Association Act. If your condominium or common interest community association would like assistance with this, please contact our office.
