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Hofmeyer v. Willow Shores Condominium

December 23, 1999

JERRY HOFMEYER, LOIS HOFMEYER, JIM ARMSTRONG, MELODY ARMSTRONG, MARK MERSMAN, AND KATHY ROGERS,
PLAINTIFFS-APPELLEES,
V.
WILLOW SHORES CONDOMINIUM ASSOCIATION,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 98--MR--327 Honorable Robert E. Byrne, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

23 December 1999

The defendant, the Willow Shores Condominium Association, appeals from the circuit court's judgment in favor of the plaintiffs, Jerry Hofmeyer, Lois Hofmeyer, Jim Armstrong, Melody Armstrong, Mark Mersman, and Kathy Rogers, declaring that an amendment to the Willow Shores condominium declaration did not violate the Condominium Property Act (the Act) (765 ILCS 605/1 et seq. (West 1998)) and was therefore binding on the defendant. The defendant contends that the amendment violates the Act by (1) creating an impermissible class of limited common elements and (2) creating classes of owners. The defendant also contends that the trial court erred in awarding the plaintiffs their attorney fees in the absence of a statutory or contractual basis to do so.

The plaintiffs are all residents of the Willow Shores Condominiums in Aurora, a complex of 64 units. Sixty units are in 15 buildings, each of which has common hallways, heating units, utilities, and other shared areas. The plaintiffs own the remaining four units, which are in a townhouse-style structure that does not have common hallways, utilities, or heating.

The complex's original condominium declaration was recorded in September 1980. In 1982, a second amendment to the declaration was recorded that expanded the development parcel to include plaintiffs' units. The amendment also divided the development into two "neighborhoods," one consisting of the 15 original buildings and one consisting solely of the plaintiffs' building. The amendment designated certain common elements within a neighborhood as limited common elements and created separate assessments against units within each neighborhood for the maintenance of the limited common elements in that neighborhood.

According to the complaint, the plaintiffs were not assessed for maintenance of the other neighborhood's limited common elements until November 1997. At that time, the defendant's board of directors decided to assess all units equally, ignoring the distinction between neighborhoods made by the second amendment. This raised the plaintiffs' assessments from approximately $77 per unit to approximately $225 per unit.

The plaintiffs filed suit, seeking a declaration that the second amendment was valid and therefore binding on the defendant and its board. The defendant responded that the amendment violated the Act. Both parties filed motions for summary judgment and the court granted the plaintiffs' motion. The court also granted the plaintiffs $4,789.50 in attorney fees. The defendant filed a timely notice of appeal.

The defendant first contends that the court erred in holding the second amendment valid. The defendant argues that the amendment violates the Act by creating an impermissible class of limited common elements.

Summary judgment is proper when the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1105(c) (West 1998). We review an order granting summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

The resolution of this issue requires us to construe the Act. In construing a statute, a court must ascertain and give effect to the legislature's intent in enacting the statute. Collins v. Board of Trustees of Firemen's Annuity & Benefit Fund, 155 Ill. 2d 103, 110 (1993). The statutory language is usually the best indication of the drafters' intent and should be given its plain, ordinary, and popularly understood meaning. Collins, 155 Ill. 2d at 111.

While conceding that the Act expressly permits the creation of limited common elements, the defendant maintains that those allowed by the second amendment are not within the Act's definition of limited common elements. The Act provides:

"Limited Common Elements means a portion of the common elements so designated in the declaration as being reserved for the use of a certain unit or units to the exclusion of other units, including but not limited to balconies, terraces, patios and parking spaces or facilities." 765 ILCS 605/2(s) (West 1998).

The Act further provides that the condominium instruments may provide "for the assessment, in connection with expenditures for the limited common elements, of only those units to which the limited common ...


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