APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Plaintiffs Mission Hills Condominium M-4 Association (Association) and Paul Diamond brought this action seeking a mandatory injunction requiring defendant Phyllis M. Penachio, a condominium unit owner, to remove a storage cabinet she erected on a portion of the common elements adjacent to her automobile parking space. After defendant raised affirmative defenses in her answer to the complaint, plaintiffs moved for summary judgment on the ground that the Condominium Property Act (hereinafter C.P.A.) (Ill. Rev. Stat. 1979, ch. 30, par. 301 et seq.) expressly prohibits division of the common elements and thus mandates judgment against defendant. The circuit court granted summary judgment in favor of plaintiffs.
Defendant asks this court to consider (1)(a) whether the circuit court erred when it ruled, as a matter of law, that erection of the storage cabinet violated the C.P.A., (b) whether that court erred when it awarded summary judgment in favor of plaintiffs; and (2) whether that court erred in awarding attorney's fees to plaintiffs.
Plaintiffs' complaint alleges defendant erected a storage cabinet within a recess of the wall adjacent to defendant's indoor parking space; and that defendant's condominium property interests were held subject to provisions contained in the Mission Hills Condominium M-4 Declaration (declaration) which also submits the property to the provisions of the C.P.A. The declaration provides in article IV, section 7, that "[n]o alteration of any Common Elements, or any additions or improvements thereto, shall be made by any Owner without the prior written approval of the [Association's] Board [of Managers]." The declaration also provides that the instant parking area constitutes part of the common elements of the condominium complex. The complaint alleges defendant failed to acquire prior written approval for the construction of her storage cabinet and, therefore, erected the cabinet in violation of the declaration. The complaint seeks an order compelling defendant to dismantle her cabinet and an award of attorney's fees pursuant to the terms of the declaration regarding costs incurred incident to enforcement of its provisions.
Defendant answered the complaint with general denials and the averment of facts constituting three affirmative defenses. Defendant alleges that between the date of her execution of the purchase agreement for her unit, June 17, 1978, and the date she took up residence in that unit, November 23, 1978, agents of the condominium developer authorized her to erect the cabinet; that said agents failed to inform her of the declaration's requirement of a written authorization; that said agents intended she rely upon their authorization; that she reasonably relied upon the authorization and constructed the cabinet; and that plaintiffs are now estopped to assert noncompliance with the declaration's requirement of a written authorization. Further, the answer alleged members of the Association's board of managers had knowledge of the construction of the cabinet on March 1, 1979; that one member of the board used the cabinet to store his personal property; that members of the board told defendant construction of the cabinet did not violate rules or regulations of the Association; and that plaintiffs waived the requirement of a written authorization because they did nothing to object to the cabinet until August 6, 1979, when defendant received a letter from plaintiffs' attorney requesting the cabinet be dismantled and removed.
Plaintiffs then filed a motion for summary judgment alleging that defendant's affirmative defenses are of no effect because section 8 of the C.P.A. provides that any covenant or agreement permitting division of a common element is void. Plaintiffs aver defendant's erection of the storage cabinet is a division of the parking area which constitutes a prohibited "partition or division" of the common elements.
Defendant challenged the applicability of section 8 of the C.P.A. and requested summary judgment in her favor. The trial court found section 8 to apply to the instant facts. The court held defendant's erection of the cabinet constituted a prohibited "division" of the common elements and granted summary judgment in plaintiffs' favor. *fn1 Defendant's appeal requests review of the circuit court's order. (Our case No. 80-1220.)
Plaintiffs subsequently petitioned the circuit court for an award of attorney's fees pursuant to a provision contained in the declaration. Although defendant contested the petition on various grounds, the trial court granted plaintiffs' petition. Defendant filed an additional appeal seeking review of that award. (Our case No. 80-1888.)
Appeal No. 80-1220 seeks review of the circuit court's order of summary judgment for plaintiffs. Defendant contends summary judgment is improper because she raised three affirmative defenses which remain uncontested by plaintiffs. Defendant further contends the trial court erred when it ruled erection of the storage cabinet constituted a "division" as that term is used in the C.P.A. *fn2 Defendant argues that in the absence of a statutory prohibition to the erection of her cabinet, the declaration governs the respective rights of the parties. Defendant contends that her uncontested affirmative defenses are sufficient to preclude a successful motion for summary judgment, and the circuit court accordingly erred when it granted plaintiffs' motion.
Plaintiffs urge that the C.P.A. specifically and clearly provides that common elements shall remain undivided. They equate defendant's erection of the cabinet as effecting a separation or division of the common elements. Defendant, they argue, uses the storage cabinet with the purpose of excluding access to other common owners. Furthermore, the instant statute expressly prohibits owners from bringing actions to divide the common elements. They argue that the effect of their failure to achieve removal of the cabinet would be a judicially sanctioned division of the common elements. Finally, they contend any permission or agreement to erect the cabinet results in an agreement to divide the common elements expressly prohibited by the statute.
Plaintiffs' argument appears sound until the term "division" is examined in the context of other provisions in the statute and the declaration. At the time this suit was instituted, the C.P.A. permitted the creation of "limited common elements" defined by the statute as portions of the common elements "designated in the declaration as being reserved for the use of a certain unit or units to the exclusion of other units, including but not limited to balconies, terraces, patios and parking spaces or facilities." (Ill. Rev. Stat. 1979, ch. 30, par. 302(s).) A declaration can therefore provide for creation of limited common elements.
If plaintiffs' argument is to be accepted, that is, if the erection of a cabinet constitutes a statutorily prohibited "division" of the common elements, then any physical division of the common elements is a violation of the prohibition. The statute, however, expressly permits division of the common elements where the declaration reserves portions of those elements for the use of certain unit owners (e.g., "limited common elements"). The instant declaration designates parking spaces, balconies, and specific storage areas as common elements over which individual unit owners are granted perpetual and exclusive easements (i.e., the use of these areas is reserved to certain unit owners to the exclusion of others). The instant declaration requires Association permission for establishment of other exclusive use areas. Such separate use clearly constitutes a "division" as that word is used by plaintiffs in their argument here. But in order to give effect to the internal consistency of the statute, the creation of exclusive use areas or limited common elements must not constitute a "division" of the common elements as that ...