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Huskey v. Board of Managers of Condominiums of Edelweiss Inc.

June 09, 1998

HERBERT V. HUSKEY, SANDRA L. HUSKEY, VIVIAN T. SIEPAK, EDWARD J. SIEPAK, RITA C. FOREST, JAMES J. FOREST, EVELYN FITZGERALD, JAMES FITZGERALD, JAMES P. BUSHELL, LUCILLE BUSHELL, SOPHIE M. FLEMING, THOMAS J. SIMS, LORRAINE A. SIMS, ALICE E. WITKOWSKY, GEORGE P. WILKIN, KATHLEEN M. WILKIN, ELMER W. KROCK, RUTH L. KROCK, MIKE CULLOTTA, MARIE T. CULLOTTA, VIRGINIA M. FIEROH, WALTER W. FIEROH, PATRICIA K. SOUTTER AND ERNEST A. SOUTTER, PLAINTIFFS-APPELLEES,
v.
BOARD OF MANAGERS OF CONDOMINIUMS OF EDELWEISS, INC., DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Presiding Justice McNULTY

Appeal from the Circuit Court of Cook County.

Honorable Berman/Boharic, judges Presiding.

Defendant, the Board of Managers of Condominiums of Edelweiss, Inc. (the Board), appeals from the trial court order granting summary judgment in favor of plaintiffs, Herbert and Sandra Huskey and other condominium owners, based on the trial court's finding that the Board exceeded its authority in changing the percentage of plaintiffs' ownership in the condominium's common elements. We affirm.

On November 18, 1987, the Condominiums of Edelweiss, Inc., was organized in the State of Illinois as a general not-for-profit corporation for the purpose of administering and operating a certain parcel of real estate located in the Village of Palos 1Park, Illinois, as a condominium. On February 8, 1988, a "Declaration of Condominium Ownership and By-Laws, Easements, Restrictions and Covenants for Condominiums of Edelweiss" (Declaration) was duly recorded in the offices of the recorder of deeds of Cook County, Illinois.

Article XX of the Declaration reserved to the developer the option to add additional property to the development. The developer exercised this option by filing 14 amendments. In the thirteenth amendment filed by the developer, the first 40 units have 1.67% ownership interest in the common elements and the remaining 20 units have 1.66% ownership interest in the common elements. The developer's fourteenth amendment, which again added more units, assigned the first 16 units the same percentage of ownership interest in the common elements, 1.57%, and assigned the balance of the units a different percentage, 1.56%.

The Board subsequently filed amendments 15 and 16, which altered the relative percentage of common element interest to 1.832% for the larger condominium units located on the second floor, which are owned by plaintiffs, and 1.472% of common element interest to the smaller units. This has the effect of increasing the plaintiffs' percentage of common element interest in the larger, second-floor units by .272%.

Plaintiffs brought suit alleging that the Board had no authority under the Illinois Condominium Property Act (Act) (765 ILCS 605/4 (West 1994)) to alter the percentage of common element ownership without the agreement of all unit owners. The trial court granted summary judgment in plaintiffs' favor. The Board appeals, claiming that a genuine issue of material fact remains as to whether the developer improperly assigned the percentage of ownership interest in the common elements to the units and whether the Board properly utilized the procedures set forth in section 27(b)(1) of the Act (765 ILCS 605/27(b)(1)(West 1994)) to correct the developer's errors and omissions in the Declaration.

Summary judgment is to be entered if the pleadings, depositions, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Dash Messenger Service, Inc. v. Hartford Insurance Co., 221 Ill. App. 3d 1007, 582 N.E.2d 1257 (1991). Our review of the provisions of the Act relied upon by the parties pertaining to amendment of the Declaration reveals that the trial court properly granted summary judgment in plaintiffs' favor.

The Illinois Condominium Property Act (765 ILCS 605/4 (West 1994)), provides in pertinent part:

"The Declaration shall set forth following particulars:

***

(e) The percentage of ownership interest in the common elements allocated to each unit. Such percentages shall be computed by taking as a basis the value of each unit in relation to the value of the property as a whole, and having once been determined and set forth as herein provided, such percentages shall remain constant unless otherwise provided in this Act or thereafter changed by agreement of all unit owners." 765 ILCS 605/4(e) (West 1994).

Section 4(e) thus expressly provides that once the percentage of ownership interest in the common elements has been determined, that percentage remains constant absent an agreement by all unit owners. Parrillo v. 1300 Lake Shore Drive Condominium, 103 Ill. App. 3d 810, 431 N.E.2d 221 (1981).

The Board, however, claims that section 27(b)(1) of the Act (765 ILCS 605/27(b)(1) (West 1994)) permits the Board to change the percentage of ownership in the common elements with the consent of less than ...


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