La Salle National Bank v. Triumvera Homeowners Ass'n

LA BANK, Trustee, SALLE al., NATIONAL Plaintiffs-Appellants, et v. — ASSOCIATION, HOMEOWNERS Defendant-Appellee. TRIUMVERA (Triumvera Association, Zekas, Homeowners Plaintiff-Appellee, Joseph In SRA-Triumvera, al.,

div. and d/b/a Defendants-Appellants.) et (4th Division) First District No. 82 — 1253 Opinion September filed 1982.

LINN, J., dissenting. Jr., Edelman, Weiss, Schopf, Crystal William G. Daniel A. Steven A. Pruess, Proctor, L. all of & Chicago, appellants. Reuben of Valenti,

Marshall N. Dickler, Dickler and Catherine both of Miller Chicago, for appellee. JIGANTI

JUSTICE delivered the opinion court: This is an from an order interlocutory appeal preliminary denying injunctive trustee, relief to the plaintiffs, La Salle National Bank as P. Joseph Zekas and TA Corporation general SRA- partners Triumvera, an Illinois (SRA), Limited Partnership granting defendant, cross-motion for preliminary injunctive relief to the Trium- vera Homeowners Association (Homeowners). dispute action arose out between SRA and the Home-

owners which developed when SRA to rent rather than attempted sell 80 vacant units in the Triumvera condominium complex. April 1982, SRA took over the Triumvera sales offices and apart- model ments; changed promotional signs about the from located complex advertising “rentals”; “sales” to advertising and informed the Home- owners they that intended to take renters on tours of the prospective areas, common building, swimming recreational and tennis pool courts. SRA also represented to their tenants and tenants prospective that they would be allowed to use and the common enjoy areas community facilities Triumvera.

According Zekas, the testimony general Joseph partner SRA, the following events took in place to SRA’s actions. response On 5, the April Homeowners’ attorney phoned him and demanded call signs

that SRA remove common areas. This was phone from the attorney advising signs followed a letter Zekas that Then on were violation association rules. Zekas April said that he received a call from rental phone agent his at Triumvera advising posted him that the association had a notice in the commu- center and had informed her that tenants and actual nity April tenants would be denied access to recreational facilities. On 21, Zekas that met with was testified he the Homeowners and told SRA, that tenants and tenants would agents, prospective their that from access the recreational facilities. Zekas said he barred talked April then to the Homeowners’ and was advised attorney policy regard Homeowners’ to SRA’s activities remained president Zekas that he then tried to unchanged. phone testified association, him, reach phoned when he was unable arrange another association’s treasurer and convinced him meet- Zekas, held in meeting a second was then ing. According on April resolved his favor. Zekas then testified that nothing was agent he call from rental at Triumvera phone received another his him removed and confis- informing forcibly Homeowners had Zekas claimed advertising cated the banners from common areas. the resident he this fact in a call to immediately phone verified afternoon, Then, that same SRA filed in- manager complex. stant lawsuit. First, SRA it appeal. in this contends

SRA makes two claims and to main- to rentals is entitled to use the common areas advertise we will for rental For convenience purposes. tain model apartments response activities. In the claim to conduct rental refer this as if is the claim, deny do not this first Homeowners can units, it them other rent. rent owner may owner However, to use the common ar- right the Homeowners contest SRA’s activities. eas to conduct rental units which it claim that is entitled rent

SRA’s second mem- will be they granted with tenants that guarantee owns and pro- that SRA’s tenants facilities and bership recreational facilities at entitled to access to recreational tenants are spective membership The that such respond time. Homeowners present made for proper application automatic and must be and access is not The further access these facilities. Homeowners membership and issue made on the yet factual record has been contend that no recreational facilities. membership access and days for several con- hearing after this matter trial court rental conducting SRA from enjoined the relevant documents sidering activities the Triumvera common areas but declined to order the Homeowners to access to the recreational facilities “at this time.”

SRA’s first contention that it is entitled to conduct rental activi- ties by using common areas to advertise rentals and to maintain model apartments for rental purposes is based on the fact that original referred in developer, the documents as the developer/declar- ant, had such a and that are they “successors/assignees” as de- fined under those documents and consequently have same right. That claim is controlled governing documents of Triumvera. Section 2.07(a) and (f) Covenants, the “Declaration Conditions, Restrictions and Easements for Triumvera” (Master Declaration), which is the overall governing Triumvera, document for read as fol- lows: “2.07 DECLARANT’S RESERVED RIGHTS:

*** Declarant, and its agents and invitees shall have the follow- ing rights:

(a) to ingress over, in, and egress through and upon the Common Area and the right to use the Facili- Community ties, without the payment of any charges fees or which may be set by Board, the Homeowners’ for the purpose showing otherwise promoting the Common Area and the Community Facilities purchasers Dwelling Units con- structed or to be constructed by Declarant on the Development Area;

(f) The place and maintain on the Premises model apartments, offices, sales advertising signs banners, lighting connection therewith at such locations and in such forms as the Declarant may, discretion, in its (Em- determine.” phasis added.)

SRA’s first claim is also based upon 2.07(a) (b) sections “Declaration of Condominium Easements, and of Ownership Restric- tions and Covenants For the Triumvera 701 Form Square Condomin- ium Association” (Building Declaration) which is the governing docu- ment for the 701 Form Square where the office building and model units are located. These sections read:

“207 DECLARANT’S RIGHTS: Anything herein to the contrary notwithstanding, the Declarant and its agents and invitees shall have the followingrights:

(a) The right to place and maintain on the Property model apartments, offices, sales banners, advertising signs and lighting connection therewith, at such locations and such discretion, determine, in its may, forms as the Declarant transient (b) ingress egress parking and and right showing elements for the through purpose and Common Area promoting any building Development and otherwise Trium- planned development to residents of the (Emphasis added.) vera.” access to the claim its involving right present

SRA’s second guarantee units right facilities and its to rent 80 with recreational in the recreational given membership the tenants that will be they the assignee/successor is the owner of 80 units as facilities because it sections 2.04 and 2.05 of is based on Developer/Declarant of the These sections read: Master Declaration.

“204 RIGHT OF ENJOYMENT: right and easement perpetual Owner shall have Every Facilities, Community the Common Area and enjoy use and include not be limited and easement shall which vehicles, in- pedestrian parking easements for and operation and spaces enjoyment open and use and gress egress, shall be appur- Such and easement Facilities. Community Unit, Dwelling the title to every tenant to and shall with pass Declaration, of this governed by provisions to and subject the Home- rules and regulations and of the By-Laws Board. owners’ USE:

2.05 DELEGATION OF the reasonable Declaration, the By-Laws, to this Subject Board, Owner Homeowners’ regulations rules and Area enjoy to use and the Common may delegate his his ten- Family in his or to persons Community Facilities Dwelling in his Unit.” who reside purchasers ants or contract added.) (Emphasis standing dispute have they contend that

The Homeowners Article under established not-for-profit corporation claim as the SRA’s the Homeowners designates the Master Four of op- for the administration for all the Owners body the “governing Home- Facilities.” The Community Area and eration of the Common area and commu- control the common rights owners claim further Declaration, which of the Master under section 2.06 facilities nity lease, maintain, use, Homeowners to Board of the empowers access gain fees to charge and to licenses or concessions SRA concedes facilities. areas and common residents areas used the common over Homeowners have control complain standing challenges buildings” but of “all Triumvera for rentals. apartments and model use of the office of SRA’s conduct it is entitled to first claim that In to SRA’s response challenge Triumvera, initially the Homeowners rental activities if SRA that even Declarant/Developer argue status as SRA’s 2.07(a) sections Declarant/Developer, to be the is eventually proved activities at to conduct sales right the Declarant the and (f) only lan- cite the the Homeowners not rentals. Specifically, Triumvera and the com- “showing” promoting 2.07(a) speaks in which guage purchasers to “prospective facilities community mon area and speaks which 2.07(f) in section Dwelling specific language Units” and offices, advertising maintain model sales right apartments, of “the Home- therewith.” The banners, in connection signs lighting or 2.07(b) Building further claim that section owners to show residents” “prospective which the Declarant the grants 2.07(a), in section conjunction must be read with complex, around argue which of sales activities. Homeowners speaks specifically in the Master Decla- language that because there is no either specific conduct reserves the Building ration or the Declaration which fall Declarant, necessarily activities such rental activities to the such in appears against under the such rental activities proscription Section 3.04 states: section 3.04 of the Master Declaration. RESTRICTION:

“3.04 COMMONAREA 2.07, no industry, Section 2.06 and under Except permitted business, trade, or shall occupation profession any kind be conducted, on of the Prem- any part maintained or permitted dis- signs ises and no “For Sale” or “For Rent” window on any part be maintained or play advertising permitted thereof.” to rent that SRA is entitled to SRA’s second claim response prospective to its tenants and guarantee

units which it owns with a facil- in the recreational granted membership tenants that will be they rent if SRA is ities, dispute the Homeowners do SRA’s argue that Dwelling title to 80 Units but to hold ultimately proved facilities the common area and enjoy to use and any right *** of the Home- regulation are the reasonable rules and “subject sections 2.04 qualification rights appears owners’ Board.” This claims such and 2.05 of the Master Declaration under which SRA for its tenants access for ten- rights membership regu- their rules and existing ants. The Homeowners state that under lations, use of the recreational gain an owner can access to the before estab- facilities, that he is an owner and follow prove he must first The Homeowners membership. lished for procedures applying claim that SRA tenants have neither proven such ownership through SRA’s title to these units nor have they yet applied for membership according procedures established the Homeowners’ Board. SRA concedes that this is true but contends brief reply “that the Homeowners Association made clear that no such application would granted.” major issues appeal are whether the trial court abused its

discretion when it enjoined plaintiffs from engaging rental ac- tivities at Triumvera and when it declined to order the Homeowners to grant access to SRA’s tenants and prospective tenants the rec- reactional facilities at the time order. An additional issue on ap- peal is whether or not trial court of a deprived plaintiffs fair preliminary injunction hearing their counsel one by disqualifying day before that hearing. Because this issue is on a set of separate based facts, it at will be considered the end this opinion.

The function of trial for considering court a motion a pre to it liminary injunction is if finds that there injunction (1) is a clearly certain and ascertainable that needs right protection, (2) that the movant suffer if will is not irreparable injury granted, (3) law, there is no at the movant adequate remedy (4) has a likelihood of success on the merits. factors These must estab a preponderance lished of the v. (Baal Corp. evidence. McDonald’s 495, (1981), 1166.) 97 Ill. 3d 422 N.E.2d The trial court has a App. great of discretion in or A re granting denying injunction. deal if it viewing only court will reverse the trial court finds the mani granting preliminary injunction against denial of was (1977), App. fest of the v. 48 Ill. 3d weight evidence. Booth Greber 213, 363 N.E.2d 6. it prevail injunction,

To in its action for a was preliminary for a the mer SRA to demonstrate likelihood success on necessary 238, its. v. Ill. 149 N.E.2d (Simpkins (1958), App. 430.) Maras 17 2d SRA was not make out case which all Although required events relief final SRA to raise hearing, would warrant at the needed a fair as to of its its claim and lead the question right the existence relief if trial court to believe that would entitled to such probably be its v. Busa ultimately allegations. its should sustain WessellCo. proof 686, Ill. 414. (1975), App. 28 3d 329 N.E.2d to be ultimately adjudicated or not is

Regardless whether SRA to convince had successor/assignee original developer, original claim that the the trial of its likelihood of success court such at Triumvera. had the to conduct rental activities developer the mer- of success on of likelihood requirement meet the Although

661 its, not have to make out a case which in all events would SEA did have to a fair hearing, ques warrant relief at final SEA did raise tion of this on the of the evidence which it Wes presented. basis sel Ill N.E.2d 414. (1975), App. Co. Busa 3d 329 documentary SEA to the court con- presented by evidence Building SEA sisted the Master Declaration and the Declaration. claims that a of Master reading 2.07(a) (f) broad sections 2.07(b) Building Declaration and section raise this Declaration fair of the Declarant’s rental activities question conduct such reading SEA of these Triumvera. claims that a broad sections necessitated current force a economic conditions which condomin- ium developer such as SEA to lease units until such time as economic conditions improve the sale of such units at reasonable permit price. only

Our task is to review these documents a de order make termination as to whether or adequate not there evidence was before the court to support its decision that SEA had not raised a ques fair tion of its likelihood of success on its claim. SEA Although argues that a reading broad of these is necessary, sections we that it believe was appropriate the trial upon court base its decision specific language used it. presented instruments It is well established that a court must arrive at a meaning from used in the language documents. is a pure Construction of law must question court from determine this the document’s clear v. First language. Sears Savings Federal & Loan Association 1 Ill.

N.E.2d 300.

An relevant indicates that under analysis documents sections granted Declarant the Master (f) 2.07(a) pur- to “prospective areas the common promote to show right the on maintain right to place Units” and the Dwelling of chasers or advertising signs offices,” and “sales apartments, model premises Declaration the Master in language specific There is no banners. in activities rental to conduct right the the Declarant grants In the of Triumvera. community facilities the the common area and to use right Declarant the the granting language of specific absence apart- common to maintain model rentals advertise the areas Master of the Triumvera, section 304 for purposes ments rental pro- specifically the Homeowners court by cited the Declaration clearly states: Section 304 such activities. scribes any of or business, trade, profession occupation industry, “No of any part on conducted, permitted or maintained kind shall be *** display window signs any rent’ and no ‘for the Premises advertising be maintained or permitted thereof.” part SRA claims that the lack of rental in specific language the Master is Declaration not fatal to its right to conduct rental activities at right Triumvera is in preserved 2.07(b) because this section of the Building Declaration. Section of the 2.07(b) Building Declaration grants the Declarant the to show “prospective residents” any “building” or “common elements.” According SRA, the use of the word residents” in the “prospective Building Declaration covers both prospective Thus, renters and prospective buyers. SRA does have the right to conduct rental activities.

However, we fail to see how the language 2.07(b) section of the Declaration claim Building substantiates SRA’s that the Declarant has conduct rental activities. Section 2.07(b) qualified by 2.07(a) Building section which speaks Declaration specifically “sales offices.” An instrument must be read and considered as a whole. (Leavitt (1961), App. 882; v. Kostel 32 Ill. 2d 177 N.E.2d In re Estate Klinker 80 Ill. 399 N.E.2d 299.) Therefore, do 2.07(b) we not believe that section Building Dec laration reading mandates a broad of relevant of the Master sections Declaration include activities. rental

In of the analysis presented view above documents court, against trial it was not the manifest weight evidence for stage the trial court to conclude at this that SRA had case failed to a fair that the Declarant question raise had use Thus, areas to rental common conduct activities. trial court did not its when abuse discretion it refused to the Homeowners enjoin interfering from with such rental on the activities. basis of Similarly, evidence, the same we do not believe that trial court was in error when it SRA from such rental activities at Trium enjoined conducting vera. addition, regardless whether or SRA is ultimately adju-

dicated dwelling successor/assignee to be owner of units Developer/Declarant, order to relief on qualify injunctive guaranteed membership second claim its tenants should be the recreational facilities and that tenants should be al- facilities, showing had to make some lowed access these first to the court that the Homeowners in fact had to grant refused these privileges to the tenants and prospective tenants. Sections 2.04 and 2.05 of the Master which cover such privileges, clearly state that the right to use and enjoy community facilities by Dwelling Triumvera Unit Owners and their delegatees subject to the “By-laws regulations reasonable rules and of the Homeown- ers’ SRA Board.” The Homeowners claim and concedes that under existing regulations, the Homeowners’ rules and before an can owner gain to the use of the recreational he must prove access facilities first that he is an applying owner follow established for for procedures The Homeowners further and SRA further con- membership. claim cedes that tenants have neither such proven ownership through units, SRA’s title to these nor have they yet applied membership for procedures Board. according established Homeowners’ addition, although SRA claims that the Homeowners have barred SRA from taking tenants on tours of the recreational fa- cilities, fact barring the record void of a any evidence such has taken place only sparsely any prospective barring refers to such tours.

The court had trial before it matter of considerable personal and economic importance to the individual homeowners and matter of considerable economic interest The to SRA. court considered the ruled, discretion, documents and and as we indicated earlier within its that SRA was not entitled to use the common areas for rental activi ties. That on ruling issue, is, bears a more nebulous second SRA’s access to the recreational SRA’s By barring facilities. use the common areas for rental elimi activities court fact nated a great deal of presence SRA’s complex. condominium SRA has a rent the units it owns under restric the same tions as other unit owner. The court not deny did SRA’s motion for an on its request to access to the recreational facilities. It said that would not access “at this time.” A trial court ex ercising equitable powers should use those It powers sparingly. ap pears that the acting court was most when it prudently proceeded cautiously by ruling definitively on the first issue and rather tenta on tively the second issue. The court could well that with the believe reduced presence SRA on the premises parties would be able resolve problem the prospective of access to the facilities recreational amicably. situation, court is available as a constant monitor of the we do not believe that we retry should this matter at this level. A final issue SRA’s appeal is claim that the trial court de- prived it of a fair preliminary injunction hearing when court dis- qualified SRA’s counsel one day According before that hearing. SRA, there was no basis & Block and this er- disqualifying Jenner roneous disqualification mandates injunc- reversal the preliminary granted tion to the Homeowners.

The issue arose when the Homeowners disqualify moved to law firm of Jenner & Block from representing plaintiffs. firm had five during represented

Homeowners claimed unit Triumvera owners who were now members of Homeowners 1982, 23, ruled there had to a Association. On the court that be April prelimi- on the the motion for the hearing issue before disqualification 27, hearing April held. The was held on 1982. nary injunction could be at Block hearing, At that a Jenner & testified he had partner rights advised unit owners Triumvera their briefly five at about condominium owners. He counselled them as whether specifically of for Chicago responsible operating the First National Bank would be certain repairing the Triumvera recreational facilities construc- control of in lieu of tion defects after the bank assumed Triumvera n foreclosing original on the Two letters introduced into evi- developer. this At the conclusion hear- testimony. dence further confirmed Jenner Block on the it “did ing, disqualified grounds the court & of ad hoc committee with an ad hoc committee or members an consult is the issue that rights very go- as to the of condominium and that plaintiffs tried these ***.” The court ing gave to be in both cases 2 to find counsel. p.m. day until next substitute

The that there was no for plaintiffs argue disqualifying basis of at Jenner & Block because there is no law an principle prohibiting assertion, the making from former client. In this torney suing plain a 4 of the Code of Pro overlooking tiffs are Canon Illinois apparently lawyer should Responsibility, provides fessional “[a] 9, of a client” and Canon which preserve confidences secrets appearance avoid even the of lawyer also cautions that should “[a] for professional disqualification The test of impropriety.” relevant under is “where substantial relation attorney these two canons representa of former can shown matter ship subject between latter will subsequent representation, tion and that adverse Chrysler Motors Chrysler Plymouth, Inc. v. (Silver be prohibited.” v. 754; India Cook 751, 518 F.2d Government (2d 1975), Cir. Corp. Industries, 737.) The rationale such 1978), Inc. 569 F.2d (2d Cir. fidelity of absolute attorney’s duty to enforce the disqualification confidential in danger inadvertent use of against and to guard Corp. Inc. v. Motors Plymouth, Chrysler Chrysler formation. Silver 1975), 518 F.2d 751. (2d Cir. client need “the former relationship, of a proof

As substantial suit pending within the more the matters embraced show no than are his adversary on behalf of attorney appears his former wherein the at- cause of action wherein related to the matters or substantially See T. C. The- him, the former client.” torney represented previously Pictures, 1953), 113 F. (S.D.N.Y. Inc. v. Bros. Corp. atre Warner 265, v. Chrysler Chrysler cited in Inc. Supp. Plymouth, Silver Cir. Corp. (2d 1975), Motors F.2d 754. cause, this found

Applying test instant the trial court that Jenner & Block had counselled five condominium as to owners their The Bank rights as owners at Triumvera vis-a-vis First National Chicago. litigation These five former clients now are involved with their Chicago a claimed successor to First National Bank over similarity as owners We of clients and Triumvera. believe issues are not are in fact only “substantially related” but “identical.” Industries, Patentex, (See (2d 1973), Ernie Inc. Inc. Cir. 478 F.2d 562.) Therefore, it was not an trial dis we believe abuse court’s cretion to Jenner & Block from the instant disqualify cause. further claim that of their coun plaintiffs disqualification

sel hearing one before the day preliminary injunction deprived them a hearing. fair re preliminary injunction Homeowners spond that SRA has the issue of fail prejudice by specifically waived ing object to the prejudice caused the one at the time day period disqualification (Castro v. Chicago, order. Rock Island & Pa 233, 5; R.R. Co. 81 Ill. (1980), 3d 401 N.E.2d Buck Alton App. cific Memorial 86 Hospital (1980), 1067.) Ill. 3d 407 App. N.E.2d We agree with the objection alleged Homeowners that since no prejudice court, was made the trial this issue cannot be raised for the first time on appeal.

For reasons above we affirm decision of the trial court. Affirmed.

ROMITI, J., concurs. LINN, dissenting:

JUSTICE I dissent from the decision of respectfully my colleagues. My re- view of record and all the pertinent documents led has me firm conclusionthat the trial court abused its not discretion when only it denied SRA-Triumvera’s for a request injunction preliminary also it granted when injunction of the favor Homeowners’ As- Further, sociation. the majority’s statement that SRA’s critical burden was to convince trial court of the original developer/declarant’s a to conduct unit leasing at on an business Triumvera focuses “issue” never specifically addressed the trial court and therefore irrelevant the-instant appeal.

I have always believed that an analysis potential abuse dis- cretion must begin with a clear understanding meaning of the and

666 of the trial

scope judge’s holding and the it findings on which based. The then proceeds to an inquiry examination of the record to see whether those and precise findings holdings are supported by manifest of the are weight evidence and thus within the discretion of the court. Although finding itself not an appealable judgment (Roche Garrigan Brothers v. Ill. N.E.2d it 338), is a trial clear reflection of the judge’s evaluation evi dence I fail to presented. see how the majority expects to assess accu rately question it ignores abuse of discretion when the trial court’s findings actual set forth clearly holding as the basis of the issue.

The trial that, court’s findings pertinent appeal to this are under the controlling provisions and definitions in the Master La Salle and not units; Zekas did were prove they dwelling owners declarant; that La Salle Zekas and developer are not that Zekas, advertising maintaining rentals and rental La Salle are models, offices, signs complex, violating within the Triumvera clear to me consequently of the Master Declaration. It is a provision request the trial denied SRA’s judge Association not because did granted of the Homeowners’ Birnloew, could not original developer/declarant, prove concluded that neither judge rental activities but because conduct of either to assert standing La Salle nor Zekas had activities, therefore, Their rental or unit owner. developer/declarant permissible and were obvious violations arguably were not even within the running a business against Master Declaration’s restriction Triumvera complex. presented sup- the documents SRA

After a careful review of all the undevel- the 80 unsold units and its claim to port ownership land, assignee of the developer/declarant’s and to status of oped its discretion when found I find that the trial court abused rights, developer/declarant neither successor to be (SRA) La and Zekas Salle “declarant,” and “developer,” of the terms owner. The definitions nor Building and in the Master Declaration contained both “trustee” both the Bank is La Salle National state that clearly Declarations as context, defined entity and, part on the depending trustee as developer defines The Master Declaration the declarant. assigns”; its successors Corporation, Development “Birnloew Inc., “Triumvera, as developer defines the Declaration Building Trustee entities as or persons or such other assigns, or successor had to mind that SRA in Keeping designate.” to time from time may legitimacy question to raise fair evidence only enough present U-Haul Co. (see on the merits and a likelihood of success of its claim I 187), necessarily 413 N.E.2d Ill. v. Hindahl La Salle by denying court its discretion conclude that the trial abused part neither the trustee nor it was to an because any right entity. of the declarant document which a further introduced into evidence SRA-Triumvera, and those

Triumvera, Inc., rights all its assigned Because Zekas. of SRA-Triumvera on behalf rights accepted were on the to sue standing Association bases its the Homeowners’ Triumvera, Inc., it it by facilities conveyed control the in interest assign its beneficial corporation’s cannot that deny standing. into its own calling question to SRA without property court, re- the trial binding by declared as The Master that, a docu- through in at least five declarations supplemental cites as de- rights all its assignments, assigned mented chain of Birnloew court can Triumvera, Inc. I fail to see how the trial clarant the additional assignments record of binding maintain that this Triumvera, Inc., to SRA assigned that all its showing document theOn declarant/developer. fail to establish SRA’s status as successor record, in the I must con- meaning basis of the clear of the documents that La Salle is the trustee proved sufficiently clude that SRA has SRA’s to conduct rental Consequently, and SRA declarant. of this conclusion. light activities must be re-examined La Salle were The trial court also found that SRA-Triumvera too, This, not the was a clear owners of 80 unsold units. abuse the defini- only discretion. The Homeowners’ Association claims controlling, tion of Declaration is not that “owner” Master of “owner” declarations. the definition building individual While or whose building person persons found in each declaration “[t]he interests, simple fee individually collectively, aggregate estates or “A Re- Unit,” begins, that in the Master Declaration of a ownership *** “Record” dwelling fee title to unit.” simple cord Owner of a County registrar in the office of the Cook filing is further defined as title to all de- as the holder of of titles. Because La Salle recorded to individual has velopment except conveyed land been is to issue owners, unit of the Torrens office practice and because recorded capable being individual certificates of unit ownership sold, it after all units in a have been is axiomatic only building La it has not everything yet conveyed Salle retains record title to Indeed, conveyed property La retains record title to away. Salle Salle, trustee, La buildings in which all units have not sold. been Zekas, real estate title, holds the to a registered legal pursuant 668 evidence,

contract introduced into holds the beneficial interest in the same that property; interest was sold to him and his by associations Triumvera, Inc., the predecessor that corporation nothing also held more than a beneficial interest and ownership whose of the beneficial interest also was not recorded in the Torrens office a of as matter Torrens the policy. Under well-established of an Illinois interpretation trust, land the interests of the trustee and the beneficiary together aggregate simple fee ownership. (See v. Chicago Robinson National 55, 659; Bank 32 Ill. 2d (1961), App. 176 N.E.2d see Ill. Rev. Stat. 30, 1981, ch. par. 302(g).) Because that same real estate contract for basis conceding Homeowners’ Association that SRA Triumvera Zekas are the developer/declarant and owner of the land in as-yet undeveloped complex, Association cannot build its for injunction case a by ignoring portions of document adverse to its is an position. permit To it do so abuse of discretion on the of part the trial court.

Further, both Master Declaration and the Building Declaration provide that each owner is a member of the Homeowners’ Association and thus owes to the a Association contractually agreed-upon monthly

assessment. The Association’s of acceptance $10,000 approximately from Zekas as one month’s assessment due from SRA on the unsold units makes clear that as a principle equity, Association from estopped asserting ownership should be now that SRA has no rights. upon SRA relied the Association’s in accepting conduct SRA’s and, detriment, payment, to its its changed position reliance on the conduct, conferring Association’s a thereby benefit on the Association. See (1973), Slavis Slavis 12 Ill. 3d 413. App. 299 N.E.2d appropriate by standard determine whether the trial *** court “the trial court abused discretion is whether arbi act[ed] or, trarily judgment without the of conscientious in view employment circumstances, of all the the bounds of reason and ig exceeded] recognized injustice of law so that resulted.” principles substantial nore^] (I 1123, 1127, re 78 Marriage Lee Ill. n N.E.2d trial 129.) my opinion, clearly court abused its dis cretion by recorded condominium ignoring by documents stipulated both of a parties; by accepting contract a validity conveying bene ficial interest in land but the same contract as undeveloped rejecting a proof of of a conveyance portion beneficial interest a developed establishing premises; by assignment same a chain of accepting very standing Association denying Homeowners’ but Zekas chain for the assignment foundation SRA; by leases offered refusing to allow relevant evidence other Triumvera was Homeowners’ claim to contradict the from ignoring testimony ownership, community; rental only ability produce establishing that Zekas’ the Torrens office was unsold unit certificates of title each instead of receipt Torrens only particular lack of ownership not a reflection his the Torrens office. employed by of certificate issuance practices clear proof summarized above is overwhelming evidence I reversed, hap- not simply because holding the trial court’s should be is devoid holding to with it also the but because pen disagree recognized prin- reason and and adherence to judgment conscientious a court’s discretion. that define the limits of ciples law majority the issue that the to address Only appropriate now ac to in rental fundamental, right engage that of Birnloew’s deemed discussion, it clear to light previous at Triumvera. In tivity of their at least a fair question me that Zekas and SRA have raised As major the as both successor owner. rights develop'er/declarant noted, not right preliminary dependent to was ity SRA’s hear to at the final that it would entitled relief proof absolute 414.) Ill. 329 N.E.2d (Wessel v. Busa ing. Co. then, Zekas is the extent which remaining question, could assert those with their rental activities rights conjunction Triumvera. meetings

At the the of his hearing, Zekas testified course Association, the his tacitly accepted po- with Homeowners’ that group sition as and unit owner would developer/declarant both successor en- rights allow each concurrently granted him exercise Triumvera. Zekas stated tity by governing various documents told he have to although the Association him would choose between exercising rights given reserved to the declarant and those an. owner, interpretation his Master Declaration and both exercise Building Declaration convinced him that he was entitled to to the rental rights simultaneously, eliminating any thus barrier both the two docu- examining activities in which he was After engaging. ments, I Zekas’ is correct. interpretation conclude that the Homeowners’ Associa- argument

The fundamental on which rent its rests Zekas have the may tion its case is while owner, he not exercise his granted any may units in the manner in- operation reserved as rental promote declarant to units, stead of a If his he must sales business. Zekas chooses lease models, models, do so in the or signs, without benefit of on-site offices Conversely, free to the facilities. access recreational models, offices, he maintain and the to show may signs, his community facilities only dealing when with bona prospective pur- fide chasers.

A careful examination of the Master the document specifically acknowledged as controlling by the Homeowners’ Associa- tion, reveals several phrases indicating that the status declarant and that of owner may be vested simultaneously person: same Declarant,

“2.01. as owners in fee simple to the premises * * * * * * *** ***

2.07 Declarant shall have the following rights:

* * * (h) convey Homeowners’ Association not than Dwelling

more (1) Unit to be used Home- owners’ Association the residence for a maintenance ***.” employee addition, Building following Declaration contains the lan-

guage:

“2.07 Declarant’s rights under this section shall terminate at

such time as longer Declarant no is a Unit ***. Owner * * * *** 3.07 If (a) Unit Owner other than Trustee De- ***.” veloper

Basic principles statutes, language construction of con tracts, "wills,and other documents held be at least as as the binding long Master Declaration have established that when each of multiple is requirements effect, intended to have separate, uncombined the dis junctive “or” should be As corollary, used. when are meant items combined, have effect when conjunctive used, construction should be or, here, either means of the word by phrasing “and” the terms to indicate (See Sutherland, no barrier simultaneous 1A application. Statutory 21.14, Statutes and Construction (4th 1972); sec. 90 ed. Williams, see Alterius, Est 15 Expressio Marq. Unius Exclusio L. an (1931), widespread Rev. 191 examination of the application of documents.) Further, this principle types numerous covenants covenantor, be in strongly against should most construed this case Association, the Homeowners’ all ambiguities doubts and should be in against (Kessler resolved favor natural restrictions. v. (1972), 901, 813.) Palmeri 3 Ill. 3d 278 N.E.2d App. Finally, maxim unis est exclusio alterius that when one expressio teaches all are thing expressed, by things inference omitted excluded. (Panarese 627, 1333.) v. 104 Ill. 432 N.E.2d No Hosty (1982), App. 3d in are where of the documents the terms “declarant” “owner” specifically disjunctive; made their consequently, conjunctive use passages supports several Zekas’ claim that he is en- noted titled to exercise simultaneously rights guaranteed all to both declar- ant and owner.

The sole basis of the Homeowners’ Association’s claim an in junction is its to enforce both own and the by-laws covenants and restrictions specified the Master Declaration. The Association claims that the breach of such a covenant or restriction consti alone tutes sufficient injury to the issuance justify injunction against addition, breaching party. if the violates declarant wilfully restriction, court is not required equities, balance the is may sue the injunction the plaintiff showing without substantial compara tive injury. (Forest Glen Community Homeowners Association No lan (1982), 108, 104 Ill. 3d 636.) However, 432 N.E.2d when one party’s claimed is in direct conflict with an clear equally and as certainable of the opposing party, the appropriate approach to be made the court is to balance the equities. threatened injury must immediate, be certain and great, whereas loss to oppos ing must party be comparatively insignificant small and if the injunc tion is granted. Housing Illinois Development Authority v. Ar bor Development Trails (1980), 84 Ill. App. 3d 1097; N.E.2d see Biggs v. Health Hospitals & Governing Com. 55 Ill. App. 370 N.E.2d 1150.

Zekas and SRA-Triumvera established and the trial court acknowl- rent their edged that if not allowed to they great injury would suffer tenants; to their the re- privileges delegated units with full ownership of “drive- moval of on-site eliminated the advertising possibility their hand, ins,” the other source of new tenants. On greatest at all. The substitution injury Homeowners’ Association suffered no of potential pur- renters instead property by potential visits to the additional to no additional burden. No subjected property chasers models, and erected, designated were signs were no additional units There- access facilities was required. no additional fore, balanced, clearly are Zekas have when the SRA and equities are far. they suffering greater injury by shown that next that SRA’s suit for majority’s contention is Asso- SRA failed to that the Homeowners’ yet ripe because show or access ciation had in fact refused to membership privileges tenants; ap- the recreational facilities to SRA’s tenants or prospective then, Further, the major- is parently, purely speculative. SRA’s injury that justifies anyone’s its this issue with the statement ity position on the “By- right to facilities is controlled access 672 rules of regulations

laws and the Homeowners’ reasonable regula- Board.” Nowhere are the details of rules and bylaws, these tions only specific set forth. The information their contents was manager. the testimony given facilities’ provided the Her of of these and reason- explanation operation “By-laws able rules and that to the facilities regulations” was access was granted proved to tenants when the owner and then dele- ownership the of gated his to use facilities to his tenant. Some indicia the given was then to tenant. The Home- “membership” apparently owners’ claims Zekas’ failure to Torrens produce Association that a title his automatically precludes certificate of for each of his 80 units ownership his “member- ability prove delegate and therefore wholly is in nature ship” Association’s claim recreant rights. irrational. already the has testimony representative of Torrens office examined; not lack a certificate of title should

been Zekas’ of Torrens found the claim that he was have been to substantiate Association’s no Indeed, an the title testified to the effect that not owner. examiner an unit building containing other owner in unsold would be unit Why again a certificate of title. the majority able Torrens produce of undocumented “reasonable guise raises this defense specious regulations my understanding. rules and of Board” beyond ten he that his specifically Zekas testified that had been informed if recreational facilities even granted ants would not be access maxims “It one of the oldest and the wisest they applied. perhaps to do a useless act.” require person of law will a equity 761, 765, Ill. (Rock Island Y.W.C.A. Bestor majority’s N.E.2d I find untenable both demand 416.) injury make futile order establish request tenants a hide of rules and raising regulations” the smokescreen “reasonable It to me that while SRA position. for its is clear support lack of in preliminary all for a requirements have fulfilled four Zekas not. While enforcement Association has junction, Homeowners’ not rank as de sufficiently a an should right, covenant is equitable showing over a clear serving protection by injunction prevail adequate without suffering irreparable injury interest protectible remedy at law. justifiably it can appears placate believe

Finally, majority outraged by stating declarant/owner thereby presence will “reduce

to the Homeowners’ Association their to resolve parties and will enable the premises” SRA on the tes- light court. eye under watchful problems amicably As- Zekas, associates, Ben of the Homeowners’ timony Polisky his facilities, Johanneson, sociation, manager community and Nikki insults, accusations, loudly threats ex- freely the bitter changed parties representatives preclude any and their between real possibility majority suggest settlement. For friendly that its affirmance of the trial court on justified spurious can such grounds bespeaks ignorance an of this apparent realities case. Far conciliation, from an that has ac- creating atmosphere all been complished the trial an granting injunction court’s the Home- owners and an to Zekas and SRA is an denying injunction escalation of the animosity between the concludes its dis- parties. majority cussion of SRA’s exclusion a mas- from facilities with terful sleight exhibition of of hand: SRA was not denied request for injunction preventing barring Homeowners’ Association from rather, SRA from the building; recreational the trial judge simply refused “at this time.” I to perceive fail practical majority distinction the finds clear. An injunction by so any other name....

The majority’s complete import of the trial misperception court’s findings holdings is revealed its statement that SRA may rent the units it owns in the same manner as any other individ- ual unit owner. On the would other contrary, only any individual unit owner be able to show a tenant facili- complete ties, he would be to guarantee able his tenant access to those facilities. This is precisely what trial court said SRA not do. may The trial court denied property all. It seems clear me that the majority is basing its affirmance the trial court erroneous It is interpretation quite case. also clear to me that the majority’s ruling, law, I contrary which find to established may well devastate very interests SRA- economically property Triumvera. above,

For the reasons outlined I would the trial court’s reverse decisions on both injunction requests.

Case Details

Case Name: La Salle National Bank v. Triumvera Homeowners Ass'n

Court Name: Appellate Court of Illinois

Date Published: Sep 30, 1982

Citation: 440 N.E.2d 1073

Docket Number: 82-1253

Court Abbreviation: Ill. App. Ct.