dissenting:
I respectfully dissent from the decision of my colleagues. My review of the record and all the pertinent documents has led me to the firm conclusion that the trial court abused its discretion not only when it denied SRA-Triumvera’s request for a preliminary injunction but also when it granted the injunction in favor of the Homeowners’ Association. Further, the majority’s statement that SRA’s critical burden was to convince the trial court of the original developer/declarant’s right to conduct a unit leasing business at Triumvera focuses on an “issue” never specifically addressed by the trial court and therefore irrelevant to the-instant appeal.
I have always believed that an analysis of potential abuse of discretion must begin with a clear understanding of the meaning and scope of the trial judge’s holding and the findings on which it is based. The inquiry then proceeds to an examination of the record to see whether those precise findings and holdings are supported by the manifest weight of the evidence and are thus within the discretion of the court. Although a finding itself is not an appealable judgment (Roche Brothers v. Garrigan (1980), 88 Ill. App. 3d 107, 410 N.E.2d 338), it is a clear reflection of the trial judge’s evaluation of the evidence presented. I fail to see how the majority expects to assess accurately a question of abuse of discretion when it ignores the trial court’s actual findings clearly set forth as the basis of the holding at issue.
The trial court’s findings pertinent to this appeal are that, under the controlling provisions and definitions in the Master Declaration, La Salle and Zekas did not prove they were owners of dwelling units; that La Salle and Zekas are not the developer or declarant; and that La Salle and Zekas, by advertising rentals and maintaining rental models, offices, and signs within the Triumvera complex, are violating a provision of the Master Declaration. It is consequently clear to me that the trial judge denied SRA’s request for an injunction and granted that of the Homeowners’ Association not because SRA did not prove that Birnloew, the original developer/declarant, could not conduct rental activities but because the judge concluded that neither La Salle nor Zekas had standing to assert any of the rights of either developer/declarant or unit owner. Their rental activities, therefore, were not even arguably permissible and were obvious violations of the Master Declaration’s restriction against running a business within the Triumvera complex.
After a careful review of all the documents SRA presented to support its claim to ownership of the 80 unsold units and the undeveloped land, and to the status of assignee of the developer/declarant’s rights, I find that the trial court abused its discretion when it found La Salle and Zekas (SRA) to be neither successor developer/declarant nor owner. The definitions of the terms “developer,” “declarant,” and “trustee” contained in both the Master Declaration and the Building Declarations clearly state that La Salle National Bank is both the trustee and, depending on the context, part of the entity defined as the declarant. The Master Declaration defines the developer as “Birnloew Development Corporation, its successors and assigns”; the Building Declaration defines the developer as “Triumvera, Inc., its successor or assigns, or such other persons or entities as the Trustee may from time to time designate.” Keeping in mind that SRA had to present only enough evidence to raise a fair question of the legitimacy of its claim and a likelihood of success on the merits (see U-Haul Co. v. Hindahl (1980), 90 Ill. App. 3d 572, 413 N.E.2d 187), I necessarily conclude that the trial court abused its discretion by denying La Salle any right to an injunction because it was neither the trustee nor part of the declarant entity.
SRA introduced into evidence a further document by which Triumvera, Inc., assigned all its rights to SRA-Triumvera, and those rights were accepted on behalf of SRA-Triumvera by Zekas. Because the Homeowners’ Association bases its standing to sue on the right to control the community facilities conveyed to it by Triumvera, Inc., it cannot deny that corporation’s right to assign its beneficial interest in the property to SRA without calling into question its own standing.
The Master Declaration, declared as binding by the trial court, recites in at least five supplemental declarations that, through a documented chain of assignments, Birnloew assigned all its rights as declarant to Triumvera, Inc. I fail to see how the trial court can maintain that this binding record of assignments and the additional document showing that Triumvera, Inc., assigned all its rights to SRA fail to establish SRA’s status as successor declarant/developer. On the basis of the clear meaning of the documents in the record, I must conclude that SRA has proved sufficiently that La Salle is the trustee and SRA the declarant. Consequently, SRA’s right to conduct rental activities must be re-examined in light of this conclusion.
The trial court also found that SRA-Triumvera and La Salle were not the owners of the 80 unsold units. This, too, was a clear abuse of discretion. The Homeowners’ Association claims that only the definition of “owner” in the Master Declaration is controlling, not that in the individual building declarations. While the definition of “owner” found in each building declaration is “[t]he person or persons whose estates or interests, individually or collectively, aggregate fee simple ownership of a Unit,” that in the Master Declaration begins, “A Record Owner *** of a fee simple title to any dwelling unit.” “Record” is further defined as a filing in the office of the Cook County registrar of titles. Because La Salle is recorded as the holder of title to all development land except that which has been conveyed to individual unit owners, and because the practice of the Torrens office is to issue individual certificates of unit ownership capable of being recorded only after all units in a building have been sold, it is axiomatic that La Salle retains record title to everything it has not yet conveyed away. Indeed, La Salle retains record title to conveyed property in buildings in which all units have not been sold. La Salle, as trustee, holds the registered legal title, and Zekas, pursuant to a real estate contract introduced into evidence, holds the beneficial interest in the same property; that interest was sold to him and his associations by Triumvera, Inc., the predecessor corporation that also held nothing more than a beneficial interest and whose ownership of the beneficial interest also was not recorded in the Torrens office as a matter of Torrens policy. Under the well-established interpretation of an Illinois land trust, the interests of the trustee and the beneficiary together aggregate fee simple ownership. (See Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55, 176 N.E.2d 659; see Ill. Rev. Stat. 1981, ch. 30, par. 302(g).) Because that same real estate contract is the basis for the Homeowners’ Association conceding that SRATriumvera and Zekas are the developer/declarant and owner of the as-yet undeveloped land in the complex, the Association cannot build its case for injunction by ignoring the portions of a document adverse to its position. To permit it to do so is an abuse of discretion on the part of the trial court.
Further, both the Master Declaration and the Building Declaration provide that each owner is a member of the Homeowners’ Association and thus owes to the Association a contractually agreed-upon monthly assessment. The Association’s acceptance of approximately $10,000 from Zekas as one month’s assessment due from SRA on the unsold units makes it clear that as a principle of equity, the Association should be estopped from now asserting that SRA has no ownership rights. SRA relied upon the Association’s conduct in accepting SRA’s payment, and, to its detriment, changed its position in reliance on the Association’s conduct, thereby conferring a benefit on the Association. See Slavis v. Slavis (1973), 12 Ill. App. 3d 467, 299 N.E.2d 413.
The appropriate standard by which to determine whether the trial court abused its discretion is whether “the trial court *** act[ed] arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceeded] the bounds of reason and ignore^] recognized principles of law so that substantial injustice resulted.” (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.) In my opinion, the trial court clearly abused its discretion by ignoring recorded condominium documents stipulated to by both parties; by accepting the validity of a contract conveying a beneficial interest in undeveloped land but rejecting the same contract as proof of a conveyance of a beneficial interest in a developed portion of the same premises; by accepting a chain of assignment establishing the standing of the Homeowners’ Association but denying that very chain as the foundation for the assignment of rights to Zekas and SRA; by refusing to allow relevant evidence of other leases offered by SRA to contradict the Homeowners’ claim that Triumvera was an ownership, not a rental community; and by ignoring testimony from the Torrens office establishing that Zekas’ ability to produce only a Torrens receipt instead of certificates of title for each unsold unit was not a reflection of his lack of ownership but only of the particular practices of certificate issuance employed by the Torrens office.
The overwhelming evidence summarized above is clear proof that the trial court’s holding should be reversed, not simply because I happen to disagree with it but also because the holding is devoid of the conscientious judgment and adherence to reason and recognized principles of law that define the limits of a court’s discretion.
Only now is it appropriate to address the issue that the majority deemed fundamental, that of Birnloew’s right to engage in rental activity at Triumvera. In light of the previous discussion, it is clear to me that Zekas and SRA have raised at least a fair question of their rights as both successor develop'er/declarant and owner. As the majority noted, SRA’s right to a preliminary injunction was not dependent on absolute proof that it would be entitled to relief at the final hearing. (Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 329 N.E.2d 414.) The remaining question, then, is the extent to which SRA and Zekas could assert those rights in conjunction with their rental activities at Triumvera.
At the hearing, Zekas testified that in the course of his meetings with the Homeowners’ Association, that group tacitly accepted his position as both successor developer/declarant and unit owner but would not allow him to exercise concurrently the rights granted to each entity by the various documents governing Triumvera. Zekas stated that although the Association told him he would have to choose between exercising the rights reserved to the declarant and those given to an. owner, his interpretation of both the Master Declaration and the Building Declaration convinced him that he was entitled to exercise both rights simultaneously, thus eliminating any barrier to the rental activities in which he was engaging. After examining the two documents, I conclude that Zekas’ interpretation is correct.
The fundamental argument on which the Homeowners’ Association rests its case is that while Zekas may have the right to rent its units in the manner granted to any owner, he may not exercise his reserved rights as declarant to promote the operation of a rental instead of a sales business. If Zekas chooses to lease his units, he must do so without benefit of on-site signs, models, offices in the models, or free access to the recreational and community facilities. Conversely, he may maintain his models, offices, signs, and the right to show the community facilities only when dealing with bona fide prospective purchasers.
A careful examination of the Master Declaration, the document specifically acknowledged as controlling by the Homeowners’ Association, reveals several phrases indicating that the status of declarant and that of owner may be vested simultaneously in the same person:
“2.01. Declarant, as the owners in fee simple to the premises * * *
* * *
2.07 *** Declarant *** shall have the following rights:
* * *
(h) the right to convey to the Homeowners’ Association not more than (1) Dwelling Unit to be used by the Homeowners’ Association as the residence for a maintenance employee ***.”
In addition, the Building Declaration contains the following language:
“2.07 Declarant’s rights under this section shall terminate at such time as Declarant no longer is a Unit Owner ***.
* * *
3.07 (a) If any Unit Owner *** other than the Trustee or Developer ***.”
Basic principles of the construction of language in statutes, contracts, "wills, and other documents held to be at least as binding as the Master Declaration have long established that when each of multiple requirements is intended to have separate, uncombined effect, the disjunctive “or” should be used. As a corollary, when items are meant to have effect when combined, conjunctive construction should be used, either by means of the word “and” or, as here, by phrasing the terms to indicate no barrier to simultaneous application. (See 1A Sutherland, Statutes and Statutory Construction sec. 21.14, at 90 (4th ed. 1972); see Williams, Expressio Unius Est Exclusio Alterius, 15 Marq. L. Rev. 191 (1931), for an examination of the widespread application of this principle to numerous types of documents.) Further, covenants should be most strongly construed against the covenantor, in this case the Homeowners’ Association, and all doubts and ambiguities should be resolved in favor of natural rights and against restrictions. (Kessler v. Palmeri (1972), 3 Ill. App. 3d 901, 278 N.E.2d 813.) Finally, the maxim expressio unis est exclusio alterius teaches that when one thing is expressed, by inference all things omitted are excluded. (Panarese v. Hosty (1982), 104 Ill. App. 3d 627, 432 N.E.2d 1333.) Nowhere in any of the documents are the terms “declarant” and “owner” specifically made disjunctive; consequently, their conjunctive use in the several noted passages supports Zekas’ claim that he is entitled to exercise simultaneously all rights guaranteed to both declarant and owner.
The sole basis of the Homeowners’ Association’s claim to an injunction is its right to enforce both its own by-laws and the covenants and restrictions specified in the Master Declaration. The Association claims that the breach of such a covenant or restriction alone constitutes sufficient injury to justify the issuance of an injunction against the breaching party. In addition, if the declarant wilfully violates the restriction, a court is not required to balance the equities, but may issue the injunction without the plaintiff showing substantial comparative injury. (Forest Glen Community Homeowners Association v. Nolan (1982), 104 Ill. App. 3d 108, 432 N.E.2d 636.) However, when one party’s claimed right is in direct conflict with an equally clear and ascertainable right of the opposing party, the appropriate approach to be made by the court is to balance the equities. The threatened injury must be immediate, certain and great, whereas the loss to the opposing party must be comparatively small and insignificant if the injunction is to be granted. Illinois Housing Development Authority v. Arbor Trails Development (1980), 84 Ill. App. 3d 97, 404 N.E.2d 1097; see Biggs v. Health & Hospitals Governing Com. (1977), 55 Ill. App. 3d 501, 370 N.E.2d 1150.
Zekas and SRA-Triumvera established and the trial court acknowledged that they would suffer great injury if not allowed to rent their units with full ownership privileges delegated to their tenants; the removal of their on-site advertising eliminated the possibility of “drive-ins,” the greatest source of new tenants. On the other hand, the Homeowners’ Association suffered no injury at all. The substitution of visits to the property by potential renters instead of potential purchasers subjected the property to no additional burden. No additional signs were erected, no additional units were designated models, and no additional access to the community facilities was required. Therefore, when the equities are balanced, SRA and Zekas clearly have shown that they are suffering the greater injury by far.
The majority’s next contention is that SRA’s suit for injunction is not yet ripe because SRA failed to show that the Homeowners’ Association had in fact refused to grant membership or access privileges in the recreational facilities to SRA’s tenants or prospective tenants; apparently, then, SRA’s injury is purely speculative. Further, the majority justifies its position on this issue with the statement that anyone’s right to access to the community facilities is controlled by the “Bylaws and reasonable rules and regulations of the Homeowners’ Board.” Nowhere are the details of these bylaws, rules and regulations set forth. The only specific information on their contents was provided in testimony given by the facilities’ manager.
Her explanation of the operation of these “By-laws and reasonable rules and regulations” was that access to the facilities was granted to tenants when the owner proved ownership and then delegated his rights to use the facilities to his tenant. Some indicia of “membership” was then apparently given to the tenant. The Homeowners’ Association claims that Zekas’ failure to produce a Torrens certificate of title for each of his 80 units automatically precludes his ability to prove ownership and therefore to delegate his “membership” rights. The Association’s claim is recreant in nature and wholly irrational.
The testimony of the Torrens office representative has already been examined; Zekas’ lack of a Torrens certificate of title should not have been found to substantiate the Association’s claim that he was not an owner. Indeed, the title examiner testified to the effect that no other unit owner in any building containing an unsold unit would be able to produce a Torrens certificate of title. Why the majority again raises this specious defense in the guise of undocumented “reasonable rules and regulations of the Board” is beyond my understanding.
Zekas testified that he had been informed specifically that his tenants would not be granted access to the recreational facilities even if they applied. “It is one of the oldest and perhaps the wisest maxims of equity that the law will not require a person to do a useless act.” (Rock Island Y.W.C.A. v. Bestor (1977), 48 Ill. App. 3d 761, 765, 363 N.E.2d 413, 416.) I find untenable both the majority’s demand that the tenants make a futile request in order to establish injury and its raising the smokescreen of “reasonable rules and regulations” to hide the lack of support for its position. It is clear to me that while SRA and Zekas have fulfilled all four requirements for a preliminary injunction, the Homeowners’ Association has not. While enforcement of a covenant is an equitable right, it should not rank as sufficiently deserving of protection by injunction to prevail over a clear showing of a protectible interest suffering an irreparable injury without adequate remedy at law.
Finally, the majority appears to believe it can placate a justifiably outraged declarant/owner by stating that the grant of the injunction to the Homeowners’ Association will thereby “reduce the presence of SRA on the premises” and will enable the parties to resolve their problems amicably under the watchful eye of the court. In light of testimony by Zekas, his associates, Ben Polisky of the Homeowners’ Association, and Nikki Johanneson, manager of the community facilities, the bitter accusations, insults, and threats freely and loudly exchanged between the parties and their representatives preclude any real possibility of a friendly settlement. For the majority to suggest that its affirmance of the trial court can be justified on such spurious grounds bespeaks an apparent ignorance of the realities of this case. Far from creating an atmosphere of conciliation, all that has been accomplished by the trial court’s granting an injunction to the Homeowners and denying an injunction to Zekas and SRA is an escalation of the animosity between the parties. The majority concludes its discussion of SRA’s exclusion from the community facilities with a masterful exhibition of sleight of hand: SRA was not denied its request for injunction preventing the Homeowners’ Association from barring SRA from the recreational building; rather, the trial judge simply refused to grant the injunction “at this time.” I fail to perceive the practical distinction the majority finds so clear. An injunction by any other name....
The majority’s complete misperception of the import of the trial court’s findings and holdings is revealed in its statement that SRA may rent the units it owns in the same manner as any other individual unit owner. On the contrary, not only would any other individual unit owner be able to show a prospective tenant the complete facilities, he would be able to guarantee his tenant right of access to those facilities. This is precisely what the trial court said SRA may not do. The trial court denied SRA any rights in the property at all. It seems clear to me that the majority is basing its affirmance of the trial court on an erroneous interpretation of the case. It is also quite clear to me that the majority’s ruling, which I find contrary to established law, may very well devastate economically the property interests of SRATriumvera.
For the reasons outlined above, I would reverse the trial court’s decisions on both injunction requests.