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02/04/94 LASALLE NATIONAL BANK v. 850 DEWITT PLACE

February 4, 1994

LASALLE NATIONAL BANK, NOT INDIVIDUALLY BUT SOLELY AS TRUSTEE UNDER TRUST AGREEMENT DATED MARCH 1, 1984, AND KNOWN AS TRUST NO. 108011; GERALD OGUSS, AN INDIVIDUAL; AND THE G.O. GROUP, INC., AN ILLINOIS CORPORATION, AND GANSER-OGUSS PARKING, INC., AN ILLINOIS CORPORATION, PLAINTIFFS/COUNTERDEFENDANTS-APPELLANTS/CROSS-APPELLEES,
v.
850 DEWITT PLACE CONDOMINIUM ASSOCIATION, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, DEFENDANT/COUNTERPLAINTIFF-APPELLEE/CROSS-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Edwin M. Berman, Judge Presiding.

Released for Publication March 18, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Rakowski, McNAMARA, Giannis

The opinion of the court was delivered by: Rakowski

JUSTICE RAKOWSKI delivered the opinion of the court:

Plaintiff-appellants (plaintiffs) hold title to a garage which adjoins the 850 Dewitt condominium building in Chicago, Illinois. When the building was converted from apartments to a condominium the developer severed the garage from the building and sold it as a separate unit. The garage was sold at a private auction sale in 1979 but later sold to plaintiffs. The plaintiffs subsequently brought suit against the 850 Dewitt Condominium Association (Association) to enjoin them from using three areas of the property that were included in the legal description of the garage. The Association counterclaimed for reformation of the legal description on the grounds of mutual mistake.

In 1989 the trial court granted summary judgment for the Association which was reversed by this court and remanded for further proceedings. LaSalle National Bank v. 850 Dewitt Condominium Association (1991), 211 Ill. App. 3d 712, 570 N.E.2d 606.

At the trial on remand, the parties stipulated that the three disputed areas were within the legal description of the garage and that the Association did not have title to the three areas. Therefore, trial was held only on the Association's counterclaim for reformation. The trial court again found in favor of the Association, and entered a judgment order for reformation of the legal description as to two of the disputed areas and a perpetual easement as to the third area. The issues on appeal are: (1) whether the trial court erred in granting reformation of the Declaration of Condominium Ownership to include the bicycle room and storage area; and (2) whether the trial court erred in granting a perpetual easement as to the boiler room area. The Association has also filed a cross-appeal on the issue of whether the remedy of a perpetual easement is incomplete.

The building located at 850 Dewitt was built in 1978 as a 22 story residential tower with a fully integrated three story garage which consisted of one floor below ground and two floors above ground. The beneficial owner of the building was Mid-Continental Realty Co (Mid-Continental). Paul Reynolds, the president of Mid-Continental, arranged for the conversion of the building to a condominium and for the sale of the garage as a separate unit. Reynolds testified at trial that it was his intent that the garage as severed contain those areas necessary to operate a parking garage such as the parking spaces, ramps and a small office. The condominium contained the remaining areas which were used by the residents of the building.

Robert Matanky, an accountant and real estate broker, investigated the purchase of the garage which was being offered at a private auction, and he visited the facility on three occasions. At the trial, he testified that the areas he visited were the three stories of the garage. He also stated that he did not go to any area of the residential tower except the lobby. He testified at the trial that it was his intent to purchase the garage containing the parking areas, ramps, and a small office, but he did not intend to purchase any area used by the condominium. He also recognized that there was no heating plant in the garage and that he would need to purchase heat from the condominium.

Mid-Continental hired Nicholas Raimondi of the National Survey Service to prepare a legal description of the property by dividing it into a tower and a garage. Raimondi planned to do this by following the outside walls of the condominium tower on the south and west. He was unable to follow the line of the south wall of the tower so he allowed for an area of undercut to accommodate the garage which lay partially beneath the tower. On the west, he was able to use a delineating line down the west tower wall. Raimondi's delineating line severed 20 of the lockers from the the locker room, 1/3 of the bicycle room from the rest of the area, and part of the boiler room from the basement boiler area.

A copy of the Offer to Purchase at Private Auction (Offer to Purchase) defines the property to be purchased as that contained in the legal description of the garage and also states that the property is under lease as a parking garage to Near North Parking Systems. Also included with the offer to purchase was a utility sharing agreement which disclosed that the heating system was in the condominium portion of the building.

After purchasing the garage, Matanky leased the property to Ganser-Oguss Parking, Inc. (G.O. Parking) until 1984 when he sold the beneficial interest in the property to G.O. Parking which subsequently assigned its interest to Gerald Oguss.

The three areas in dispute are: (1) a blocked off area in the northwest corner of the ground floor of the garage which the Association uses as a bicycle room (bicycle room); (2) an area over the entrance ramp from the street to the second level of the garage which contains 18 to 20 of the Association's 220 storage lockers (storage area); and (3) an area in the basement of the garage beneath the ramps which contains fire prevention equipment for the garage and Association (boiler room area).

Plaintiffs first contend that the trial court erred in granting reformation of the condominium declaration to include two of the disputed areas because the Association failed to present sufficient evidence of the ...


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