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03/22/89 the Streams Club, Ltd., v. Leland Thompson

March 22, 1989

THE STREAMS CLUB, LTD., PLAINTIFF-APPELLANT

v.

LELAND THOMPSON, A/K/A LELAND J. THOMPSON, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

536 N.E.2d 459, 180 Ill. App. 3d 830, 129 Ill. Dec. 619 1989.IL.386

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiff, The Streams Club, Ltd. (the Club), brought an action in the circuit court of Du Page County against condominium owners Leland and LaVerne Thompson, their condominium association, The Streams Condominium No. 2 (the Association), and others believed to have some interest in the condominium unit owned by the Thompsons. Plaintiff alleged breach of contract as well as the right to foreclose on a lien that plaintiff claimed arose because the Thompsons failed to pay annual dues to the Club.

Defendants answered the complaint and filed a counterclaim for declaratory judgment. Defendants alleged that although article 15 of the "Declaration of Condominium Ownership" (the declaration) originally required membership in the Club, the condominium owners amended the declaration in October 1983 to rescind the membership requirement. Defendants requested an order declaring the rights of the parties pursuant to the amendment.

Defendants moved for summary judgment on their counterclaim. The trial court found that the 1983 amendment was valid and entered summary judgment in favor of defendants. Plaintiff appeals, contending that because there are genuine issues of material fact regarding the validity of the amendment, summary judgment was improperly granted.

The Streams Condominium No. 2 "Declaration of Condominium Ownership" was recorded in April 1972. Article 15 of the declaration provides that the condominium developer would form a sports club adjacent to the condominium development. Upon purchase of a condominium unit, the condominium owner would become a member of the club and would be required to pay an annual fee.

Article 17 of the declaration sets out the procedures for amending the declaration. Article 17 provides in relevant part:

"17.1 Amendment. The provisions of this Declaration may be changed, modified or rescinded by an instrument in writing setting forth such change, modification or rescission, signed by Owners having at least three-fourths (3/4) of the total vote, and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 lienholders of record have been notified either by personal service or mailing by certified mail of such change, modification or rescission, and an affidavit by said secretary certifying to same is part of such instrument."

In September 1983, the condominium owners sought to amend the declaration to rescind the Club membership requirement. Defendants attached a copy of the amendment to their counterclaim for declaratory judgment and to their motion for summary judgment. The document sets forth, after preliminaries, that a meeting of unit owners took place on September 12, 1983, for the purpose of amending article 15; that notice of the meeting had been sent to each entity entitled to vote and to all lienholders of record; that 100% of the ownership in the common elements voted in favor of rescinding article 15; and that in consideration of the vote and the signatures of at least 75% of the total percentage of ownership in the common elements (signatures are attached to the amendment as exhibit A), article 15 would be rescinded as of the date that the document was recorded. The amendment was recorded on October 5, 1983. The amendment is signed by Edward R. Kregor, president of the Association.

Below Kregor's signature on the second page of the amendment the following certification appears:

"The undersigned, as Secretary of The Streams Condominium Number II, being duly sworn, states as follows:

1. That he caused notice of a special meeting of the unit owners called for the purpose of amending the Declaration of Condominium to be mailed or personally delivered to each person entitled to vote sent or delivered not less thant [ sic ] 10 days prior to the date of the meeting.

2. That he caused notice of such amendment and rescission of Article 15 of the Declaration to be personally served or posted by certified mail to all lienholders of record.

3. That the foregoing Amendment to Declaration of Condominium and its exhibit is true and correct in respect of the premises it represents." The certification was signed and sworn before a ...


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