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04/18/89 Marcia Friedman, v. Randall J. Gingiss Et Al.

April 18, 1989

MARCIA FRIEDMAN, PLAINTIFF-APPELLANT

v.

RANDALL J. GINGISS ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

537 N.E.2d 1067, 182 Ill. App. 3d 293, 130 Ill. Dec. 738 1989.IL.542

Appeal from the Circuit Court of Cook County; the Hon. Sophia M. Hall, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. SCARIANO and EGAN,* JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff, Marcia Friedman, filed a complaint for declaratory relief and permanent injunction against defendants, Randall and Helene Gingiss and the 1100 Lake Shore Drive Condominium Association. The trial court granted defendants' motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615). This appeal followed.

1100 North Lake Shore Drive is a residential condominium building in Chicago, Illinois. One- and two-story apartment units are located on floors 3 through 40. Each floor contains three units: an A and a C unit, which are two-story units, and a B unit, which is a one-story unit. The odd-numbered floors contain the first level of the A and C units and an entire B unit. The even-numbered floors contain the second level of the A and C units and an entire B unit. The primary entrances to the two-story units are located on the odd-numbered floors, with another door on the even-numbered floor above. As originally designed, this second story did not have any exterior hardware and, therefore, this door could only be used for egress.

Plaintiff owns unit 20B, a one-story apartment on the 20th floor. She shares the 20th floor with the second level of units 19A and 19C. While units 19A and 19C have their primary entrance on the 19th floor, they also have doors on the 20th floor. Defendants Randall and Helene Gingiss own unit 19A. The owner of unit 19C is not a party to this litigation.

The complaint alleges that plaintiff purchased unit 20B because it did not share the 20th floor hallway with any other unit's primary entrance and because under the association rules and regulations, she had the option to decorate the hallway. Plaintiff exercised this option.

The complaint further alleges that since Randall and Helene Gingiss moved into unit 19A, they have improperly used their door located on the 20th floor as a regular means of ingress and egress. It alleges that Randall and Helene Gingiss also installed a key-activated lock on the exterior of the door, thus facilitating ingress by way of the 20th-floor door.

Plaintiff claims that the use of the 20th-floor door by Randall and Helene Gingiss interferes with her right to the exclusive and peaceful enjoyment of the 20th-floor hallway and the peaceful use of her unit. Plaintiff asked the court to declare a negative easement for the benefit of her unit, 20B, which would restrict the owners of unit 19A (and 19C, which is similarly situated) from using their 20th-floor door except as an emergency exit.

The trial court dismissed the complaint for failure to state facts sufficient to warrant the imposition of a negative easement.

In order to withstand a motion to dismiss, a complaint must set forth a legally recognized claim as the basis for recovery and must properly plead facts. (Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 458 N.E.2d 1120.) A motion to dismiss admits for purposes of review all well-pleaded facts. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.) Exhibits attached to the complaint are considered part of the complaint. (Bond v. Dunmire (1984), 129 Ill. App. 3d 796, 473 N.E.2d 78.) If there is a conflict between the allegations of the complaint and the exhibits, the exhibits control. (Salisbury v. Chapman Realty (1984), 124 Ill. App. 3d 1057, 465 N.E.2d 127.) A complaint must be dismissed with prejudice if it is determined that no facts exist which would entitle plaintiff to the relief requested. White Fence Farm, Inc. v. Land & Lakes Co. (1981), 99 Ill. App. 3d 234, 424 N.E.2d 1370.

A negative easement precludes the owner of the land subject to the easement from doing an act which, but for the easement, the owner would be entitled to do. (Chapman v. Sheridan-Wyoming Coal Co. (1950), 338 U.S. 621, 94 L. Ed. 393, 70 S. Ct. 392.) Easements can only be created by grant, implication or prescription. ( Evanik v. Janus (1983), 120 Ill. App. 3d 475, 484, 458 N.E.2d 962.) To acquire an easement by grant, although no particular words are necessary, they must clearly show an intention by the grantor to confer an easement. (Chicago Title & Trust Co. v. Wabash-Randolph Corp. (1943), 384 Ill. 78, 85, 51 N.E.2d 132.) The terms of the grant must be definite, certain and unequivocal. (Aebischer v. Zobrist (1977), 56 ...


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