## Facts

- A planned unit development formed in 1971 was governed by a recorded declaration of covenants and recorded bylaws.
- The declaration functioned as the primary instrument for property-use restrictions and allowed amendment only by an instrument signed by at least 75% of lot owners.
- The bylaws governed internal association procedures and could be amended by a majority vote under the corporate documents.
- The declaration did not expressly ban rentals and defined “resident” to include lessees and tenants; rentals had occurred since the development’s creation.
- James and Margaret Kiekel owned eight units, lived in none of them, and rented all units to tenants.
- Other owners complained about some tenants’ disruptive behavior and alleged inadequate maintenance of the Kiekels’ units.
- In 2004, the association adopted a bylaw amendment (approved by 51% of owners present at a meeting) imposing substantial rental restrictions, including a phase-out approach tied to changes in ownership.
- The association sought to enforce the rental restriction against the Kiekels; the Kiekels sued for a declaration that the bylaw was unenforceable.
- The association counterclaimed for injunctive relief to stop rentals and compel sale to owner-occupants.

## Issues

1. Whether an association may impose extensive rental and other property-use restrictions by bylaw amendment rather than by amending the declaration.
2. Whether the 2004 bylaw amendment conflicted with the declaration and was therefore void and unenforceable.
3. Whether renting violated the declaration’s “commercial use” restriction or “noxious activity” restriction so as to justify injunctive relief.

## Decision

- The court reversed the district court’s ruling upholding the 2004 bylaw amendment and held the rental-restriction bylaw amendment invalid and unenforceable.
- The court held that extensive rental restrictions affecting owners’ property-use rights could be accomplished only through an amendment to the declaration, subject to the declaration’s supermajority amendment requirement.
- The court affirmed the denial of the association’s request for an injunction.
- The court held that, under the declaration, renting did not constitute “commercial use,” and the record did not establish that renting itself violated the “noxious activity” provision.

## Legal Principles

- In a community association, the declaration is the governing instrument for substantive property-use restrictions; bylaws primarily address internal governance and operations.
- An association cannot use a bylaw amendment procedure to impose new, substantive restrictions that effectively modify or conflict with rights defined by the declaration, especially where the declaration requires a higher approval threshold for amendments.
- Restrictive covenants limiting the free use of property are strictly construed against restrictions; ambiguity is resolved in favor of free use.
- Residential leasing does not, without more, transform residential use into prohibited “commercial” use under typical residential-use covenants.
- “Noxious activity” restrictions do not authorize a blanket ban on rentals absent proof that the challenged activity itself constitutes the prohibited noxious conduct.
- Injunctive relief generally requires proof of irreparable future injury, inadequacy of legal remedies, a balance of hardships favoring the movant, and consistency with the public interest.

## Conclusion

The court held that the association’s attempt to restrict rentals by bylaw improperly altered substantive property-use rights governed by the declaration and was therefore void; it also rejected the association’s effort to treat renting as prohibited commercial or noxious conduct and affirmed denial of injunctive relief.


Kiekel v. Four Colonies Homes Ass’n, 38 Kan. App. 2d 719, 162 P.3d 57 (Kan. Ct. App. 2007)