APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a bench trial on count III of the complaint, which alleged that a lease/easement of a portion of the common elements for a single parking space was improper, judgment was entered in favor of defendants (Lauletta) and this count was subsequently dismissed. On appeal, plaintiffs contend that the trial court erred in finding for defendants and dismissing the complaint as the attempted amendment of the condominium declaration was improper and defendants had actual and constructive notice of the fact that the disputed area was part of the common elements. We reverse and remand. The facts are as follows:
In October 1972, defendants entered into a real estate contract to purchase a condominium unit as Les Chateau condominium from the developer, Bern Builders, Inc. Defendants contracted for two parking spaces and were told that these spaces were inside the garage. It was later determined that two spaces were not available inside the garage and so a parking space was designated by the developer outside of the garage. This was a new parking space which had not previously been identified on the survey of the property.
The developer's president, Mr. William Tedtman, and defendants (Lauletta) executed a 99-year lease at closing with a covenant to record an easement.
Defendants moved into their unit in December 1972. At that time only four other units were occupied and owned by others. The shrubbery was removed from the area designated as defendants' parking space in February or March 1973, and they began using the space at that time.
The association took over management of the building from Bern Builders on November 1, 1973. They offered defendants the use of a parking space at the rear of the building for their second car, which was refused.
Defendants testified that they signed a contract and received a copy of a survey in 1972. They were told that they had two parking spaces, both of which were inside the building. At closing, however, the developer realized that they could not have two spaces inside the building and so designated space 3A located at the front of the building. Bern Builders indicated to them that they would amend the condominium declaration to provide for the new parking space so designated; however, to their knowledge, this was not done.
The trial court found in favor of defendants, indicating that the developer made leases and operated the condominium prior to the time the association actually came into being. The court also indicated that it would be inequitable in light of all the circumstances to deprive defendants of the space they contracted for and that the association should have been put on notice that these parties had been given the parking space in dispute.
Plaintiffs contend that defendants attempted to purchase or lease from the developer a parking space which the developer did not own and to which it had no right to control and that the attempted amendment of the Declaration to provide for the parking space in question was ineffective and as such, the disputed parking area remains part of the common elements of the Les Chateau condominium. We agree.
The Declaration of Condominium (Declaration) governed the sale of the Les Chateau condominiums and was recorded in February 1972. It designated the common elements as being all portions of the property except the units. It also included a survey, which designated certain areas of the common elements as parking spaces; however, the disputed parking area was not included as such in the survey, and thus would have been considered part of the other common elements. Defendants' argument that the percentage of ownership in the common elements has not been effected and that the amendment merely redesignates a use for a portion of the common elements as a parking space, is unpersuasive since the Declaration specifically indicates that each unit ownership has a perpetual and exclusive easement of a parking space. As such, for all practical purposes, no other tenant can use another's assigned parking space and that particular parking space passes along with the unit if there is any change in unit ownership. In effect, then, the common elements as to all other tenants have thereby been diminished.
Article III of the Declaration states the applicable rules affecting the common elements. Relevant portions of this Article state that:
"Each owner shall own an undivided interest in the common elements as a tenant in common with all the other owners of the property * * *
The extent or amount of such ownership (in the common elements) shall be expressed by a percentage amount, and, once determined, shall remain constant, and may not be changed without ...