Illinois Ct. Says Owners’ Day-Care Business is Not a Prohibited Commercial Activity

Appellate Court of Illinois, Third District, decision (November 4, 2015).

In this case, a homeowners association (“Association”) filed an action against two different sets of homeowners (“Owners”) in an effort to prevent the Owners from operating daycare businesses within the common interest community. Association contended that Owners’ operation of the daycare businesses were in violation of Association’s governing documents that prohibited owners from engaging in commercial activities that required customers to frequent the property within the community. Association contended that the operation of the daycare businesses resulted in frequent commercial traffic in and around Owners’ residences.

The trial court granted summary judgment in favor of Owners after finding that the small number of children that attended the daycare business (5 -7 children to each of the homes) did not equate to the public “frequenting” the property. Association appealed the trial court’s summary judgment in favor of Owners, contending that there was a genuine issue as to whether or not the additional vehicles that went to and from the two daycare businesses constituted the “frequent” commercial traffic that was prohibited by Association’s governing documents.

The appellate court ruled that the interpretation of the word “frequent” did not require an evidentiary hearing and that it was required to construe the covenant in question strictly against the developer of the governing documents and in favor of the owners’ free use of their property. Because the word was not defined in Association’s governing documents, the court looked to the Webster’s dictionary definition of, “given to some practice: habitual, persistent” and concluded that the seven or eight cars that entered and left the community in the morning and again in the evening to drop off and pick up children at the daycare businesses did rise to the level of the “frequent” commercial traffic that would be in violation of Association’s governing documents. Accordingly, the appellate court affirmed the trial court judgment in favor of Owners.

See case decision: Neufairfield_Homeowners_Ass’