Gerber v. Hamilton

• Decision Date: 27 December 1995
• Docket Number: No. 5-94-0759,5-94-0759
• Citation: 213 Ill.Dec. 527,659 N.E.2d 443,276 Ill.App.3d 1091
• Parties: , 213 Ill.Dec. 527 Debra GERBER, Russell Gerber, Albert Gallay, and Alberta Gallay, Plaintiffs-Appellants, v. Mark HAMILTON and Lana Hamilton, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 443

659 N.E.2d 443

276 Ill.App.3d 1091, 213 Ill.Dec. 527

Debra GERBER, Russell Gerber, Albert Gallay, and Alberta Gallay, Plaintiffs-Appellants, v. Mark HAMILTON and Lana Hamilton, Defendants-Appellees.

No. 5-94-0759.

Appellate Court of Illinois Fifth District.

Dec. 27, 1995.

David W. Dugan, Wood River, for Appellants.

Bob L. Perica, Hoefert and Perica, P.C., Alton, for Appellees.

Justice WELCH delivered the opinion of the court:

Plaintiffs brought an action in the circuit court of Madison County seeking to enjoin the defendants from continuing the operation of a beauty salon in their home. Plaintiffs, neighbors of the defendants, allege that defendants' operation of a beauty salon violates the restrictive covenants incorporated into the deed of the lots within their subdivision, Whispering Oaks. The circuit court held that the defendants' operation of a beauty salon did not violate the restrictive covenants. We reverse and remand with directions.

The deed to the lots in the Whispering Oaks subdivision contains numerous covenants and restrictions. One provided:

"1. Said restricted lots shall be used for residential purposes only for the construction thereon of not more than one single-family dwelling house not exceeding two (2) stories in height and private garage, if any, must be attached to the house."

Another restriction provided:

"6. No person shall use or occupy any lot in such a manner as to create a nuisance to the other lot owners or in a manner which would tend to make the neighborhood undesirable for residential purposes. * * * No advertising signs shall be displayed on the premises except for sale or rent of the property, or for advertising display homes. No business, trade or other commercial enterprise shall be set up on any lot. Nothing herein shall prevent any owner from doing professional work in his own home provided that there are no signs to that effect placed upon the premises or other advertising to that effect." (Emphasis added.)

On April 23, 1994, defendants moved into their home in Whispering Oaks subdivision. The house is located on a cul-du-sac with six other homes, all of similar size and value, and is worth approximately $180,000. Defendant Lana Hamilton testified that she owns and operates "Lana's Place", a beauty salon business, out of her residence. Lana's Place is open three and a half days a week and averages between 10 and 15 customers a day, and approximately 35 to 40 cars driven by customers arrive at the house each week. Plaintiff Debra Gerber testified that once the Hamiltons moved into the subdivision, she began hearing the constant sound of car doors opening and closing, the sound of hair dryers blowing, and the sound of people talking loudly to be heard above the noise of the hair dryers, and she began noticing an increase in traffic in the neighborhood. Plaintiff Alberta Gallay, who lives directly next door to defendants, testified as to the same disturbances testified to by Debra Gerber but further added that on a few occasions people have mistaken her house for that of the defendants. Harold Blasters, the developer of the subdivision, who had the covenants and restrictions drafted, testified that he did not want the subdivision to turn into a commercial venture but that he also knew people were doing various things in their homes. He never directly affirmed or denied the proposition that defendants' operation of a beauty salon is prohibited by the restrictive covenants he drafted.

On October 6, 1994, a bench trial was held regarding the creation of a permanent injunction to enjoin the defendants' operation of a beauty salon. The court found that at the current level of activity there was no nuisance, that defendants' business is a professional business, that the primary use of the home was residential, and that the current use of the premises is consistent with the restrictions in the covenants.

On appeal, plaintiffs argue that the circuit court's finding is against the manifest weight of the evidence. For the following reasons, we agree with plaintiffs and reverse the circuit court.

The decision on whether to grant injunctive relief is committed to the sound discretion of the trial court, and its decision will not be disturbed on review absent an abuse of that discretion. (Millard Maintenance Service Co. v. Bernero (1990), 207 Ill.App.3d 736, 152 Ill.Dec. 692, 566 N.E.2d 379.) The test for determining whether the trial court abused its discretion is whether the trial court's decision is contrary to the manifest weight of the evidence. (Continental Cablevision of Cook County, Inc. v. Miller (1992), 238 Ill.App.3d 774, 179 Ill.Dec. 755, 606 N.E.2d 587.) A trial court's judgment is against the manifest weight of the evidence if the opposite result is clearly evident. In re J.P. (1994), 261 Ill.App.3d 165, 198 Ill.Dec. 565, 633 N.E.2d 27.

When interpreting a covenant, a court should strictly construe its language and all doubts and ambiguities are to be resolved in favor of natural rights and against restrictions on the use of property. (Wier v. Isenberg (1981), 95 Ill.App.3d 839, 51 Ill.Dec. 376, 420 N.E.2d 790.) However, this rule will not be applied to ignore or override the specific language or obvious purpose of a restriction. Wier, 95 Ill.App.3d at 843, 51 Ill.Dec. at 379, 420 N.E.2d at 793.

The specific language of a restrictive covenant in the deed for the Whispering Oaks subdivision prohibits the setting up of a business, trade, or commercial enterprise. "No business, trade or other commercial enterprise shall be set up on any lot." There is no dispute that "Lana's Place" is a business. During the testimony of defendant Lana Hamilton, she referred to her beauty salon as a "business" more than a half a dozen times. This establishment of a business is in direct violation of the specific language of this restrictive covenant.

Defendants argue that their beauty salon falls under a professional work exception in a covenant which states, "Nothing herein shall prevent any owner from doing professional work in his own home provided that there are no signs to that effect placed upon the premises or other advertising to that effect." We disagree. When viewing the specific language of this deed and the circumstances surrounding its execution, there is a distinction between allowing an individual to engage in professional work at home and allowing an individual to establish and operate a business at home. The former is allowed, the latter is prohibited. Defendants have gone beyond the mere engaging in professional work at home and have set up a business. Clients come to defendants' home, all business phone calls are received at the defendants' home, noises related to the business can be heard coming from the defendants' home, and all the work relating to Lana's beauty salon business is performed at defendants' home. This violates the intent of the restrictive covenant in the deed.

In other Illinois cases which have addressed this issue, courts have focused on the purpose of such restriction and whether the use in question defeated that purpose. In Wier v. Isenberg (1981), 95 Ill.App.3d 839, 51 Ill.Dec. 376, 420 N.E.2d 790, a covenant provided that no lot was to be used except for single residential purposes. Defendants were practicing psychotherapy and social work from their home. In appealing the trial court's granting of an injunction, the defendants argued, inter alia, that social work services were not incompatible with residential use. The court rejected this argument, holding that because the occupation in which the defendants were engaged necessitated patients and clients coming to their home on a regular basis, the use could not reasonably be considered limited to a residential purpose. Wier, 95 Ill.App.3d at 845, 51 Ill.Dec. at 380, 420 N.E.2d at 794.

In reaching this conclusion, the court relied on N.H. Engle & Sons, Inc. v. Laurich (1968), 98 Ill.App.2d 18, 240 N.E.2d 9. In Laurich, the court held that property restricted to "residential purposes only" precluded a doctor from conducting his practice in his home. In reaching this conclusion, the court reasoned:

"When a professional man pursues an occupation in his home in which it is necessary that patients, clients or patrons call at his home for the purpose of obtaining treatment, or similar activity, it then becomes a nonresidential use, and is contrary to a restrictive covenant of the type which was contained in the deed in the instant case. The purpose of the covenant was to eliminate traffic, noise and confusion in the neighborhood so it remains a residential neighborhood. The use by a doctor of his home for such purposes is clearly one type of use which was designed to be prohibited by the clause. It is understandable, that not all uses of a home for nonresidential purposes would be violative of the covenant referred to. An illustration of a use which apparently would not be a violation of the covenant, would be the use by an author of a portion of his home for the business of the author in the process of writing, etc. It is when the business or profession requires marked changes or activity outside of the residence itself in the form of noise, or displays, or patients entering and leaving in substantial numbers, that the use becomes a violation of the covenant." (Laurich, 98 Ill.App.2d at 26-27, 240 N.E.2d at 13.)

While the restrictions in Wier and Laurich made no explicit provision allowing for nonresidential use, the court found that some nonresidential uses nevertheless are not violative of such a general restriction. However, in the present case, the covenants, while limiting use for residential purposes only, also specifically prohibit the setting up of a business or a commercial enterprise. Although there is a "professional work" exception, we do not believe that this contemplated the establishment of an enterprise such as defendants', whereby patrons and...