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Streams Sports Club, Ltd. v. Richmond

OPINION FILED DECEMBER 16, 1983.

THE STREAMS SPORTS CLUB, LTD., APPELLEE,

v.

DONNA RICHMOND ET AL., APPELLANTS.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. John S. Teschner, Judge, presiding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Plaintiff, Streams Sports Club, Ltd., brought an action against condominium owner Donna Richmond (hereafter referred to as defendant) and others believed to have some interest in the condominium unit owned by defendant. A breach of contract was asserted, as well as a right to foreclose on a lien that plaintiff claimed arose because defendant refused to pay annual dues to the sports club. In the amended complaint, count I sought foreclosure pursuant to the Illinois Mortgage and Foreclosure Act (Ill. Rev. Stat. 1979, ch. 95, par. 23); count II sought for foreclosure pursuant to article 15 of the condominium declaration; and count III alleged a breach of contract. The circuit court of Du Page County granted defendant's motion to dismiss, and plaintiff appealed on counts II and III. The appellate court reversed the trial court's decision with respect to count II and count III (109 Ill. App.3d 689), and we granted leave to appeal (87 Ill.2d R. 315(a)).

Four issues are presented upon appeal: (1) Is the club's lien valid and enforceable? (2) Are the terms of the contract between the club and unit owners valid and enforceable? (3) Is the attempted amendment to the contract enforceable? (4) Is the amendment, if enforceable, invalid for failure to comply with the requirements set forth in the condominium declarations?

This is a case of first impression before this court, and arises from the increasingly common method of property ownership, the condominium unit. In the case at bar, the Streams Sports Club, Ltd., is a successor in interest to Shannon, Inc., the developer of a condominium complex in Wheaton. The Streams Sports Club owns and operates recreational facilities adjacent to the condominium complex. The original declaration of condominium ownership was filed in the Du Page County recorder of deeds office on July 5, 1973. The condominium declaration provides, in pertinent part:

"Article 15

Streams Sports Club

15.1 Club Facilities. The Developer intends to form or has already formed a sports club to be located west of this Condominium. This club will be owned by the Developer and operated for profit by the Developer, its assignees, vendees or designees. The intended facilities of such Club may include a club house, food and beverage service, a swimming pool, tennis courts>, a private lake landscaped and developed for fishing, boating and other recreational facilities. The nature of any such intended facilities, improvement or development of such Club and the authority to determine whether any facility or service of such Club shall be continued, altered, changed or terminated are hereby in all respects fully reserved to the title holder, owner and operator of such Club.

15.2 Membership in Club. Each Owner of any Unit in the entire Condominium Development shall, upon acquisition of title, by such Owner, become a member of the Club, without any membership or initiation fee therefor. Each such Owner may exercise and enjoy any and all facilities of such Club as may exist from time to time, expressly subject and contingent upon the continuous compliance by each such Owner with all By-Laws, rules and regulations as the Owner of said Club may adopt from time to time, and the payment of any annual membership fees and such other fees occasioned solely by the use of the facilities of the Club by such Unit member, as may be imposed, in amounts deemed reasonable by such Owner and applicable, generally, to the entire membership for any particular facility or service.

15.3 Termination of Membership or Privileges.

All unpaid charges shall be a lien against said Unit, subject, however, to rights of any mortgages on said Unit. The Club shall have the right, in addition to any other remedy, to enforce its lien by foreclosure, and there shall be added to the amount due the costs of suit, fees, expenses, interest at the rate of eight per cent (8%) per annum and reasonable attorneys fees.

ARTICLE 17

Amendments

17.1 Amendments. The provisions of this Declaration may be changed, modified or rescinded by an instrument in writing setting forth such change, modification or rescission, signed by Owners having at least three-fourths (3/4) of the total vote, and certified by the secretary of the Board, provided, however, that all lien holders of record have been notified either by personal service or mailing by certified mail of such change, ...


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