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Schaffner v. 514 West Grant Place Condominium Association

August 29, 2001


The opinion of the court was delivered by: Justice Wolfson


Appeal from the Circuit Court of Cook County. Honorable Bernetta D. Bush, Judge Presiding

Three into two don't go -- not when the three are the only unit owners in a condominium apartment building and the two are outside parking spaces that are part of the development but are not mentioned in the Declaration of Condominium Ownership.

The inevitable happened. One owner, a latecomer to the building, sued the other two owners who had staked claims to the two spaces by voting to amend the Declaration. Those two owners counterclaimed, seeking a reformation of the Declaration that would establish their rights to the spaces.

The plaintiff emerged victorious at the pleading stage in the trial court. He won a judgment on the pleadings, thus eliminating the amendment, and he won a motion to dismiss the defendants' counterclaim for reformation. We affirm the trial court's order granting judgment on the pleadings, but we reverse the order granting plaintiff's motion to dismiss the counterclaim for reformation and we remand for further proceedings.


We take relevant facts from the pleadings.

514 West Grant Place Condominium Association, Inc. (the "Association"), is an Illinois not-for-profit corporation organized under the Illinois Condominium Property Act (the "Act") (765 ILCS 605/1 et seq. (West 1998)). The Association's purpose is to administer and operate the property known as Units 101, 102, and 103 of 514-516 West Grant Place, Chicago, Illinois (the "Property"), as defined by the Declaration of Condominium Ownership and of Easements, Covenants, Restrictions and Bylaws (the "Declaration").

In 1984, Corrales & Associates Limited Partnership (the "Developer") converted 514-516 West Grant Place, Chicago, Illinois, to a three-unit condominium. At about the same time, 514 West Grant Place Condominium Association was formed.

In 1984, Lisa Ross purchased Unit 101 from the Developer. She lived in Unit 101 until 1995. In 1995, defendant Bruce Gershenzon (Gershenzon) bought Unit 101 from Lisa Ross.

Defendant William Wylie III (Wylie) purchased Unit 102 in 1984 from the Developer. Wylie has been Unit 102's only owner/occupant.

William Mallers, Sr., a principal of the Developer, purchased Unit 103 and lived there from 1984 to about 1993. His son, William Mallers, Jr., bought and/or lived in Unit 103 from 1993 to about 1995. In 1995, Jeff Drulac bought Unit 103 and lived there until 1998. In 1998, plaintiff Alan Schaffner (Schaffner) bought Unit 103 from Jeff Drulac. *fn1

Wylie and Gershenzon have been Board Members of the Association since they became unit owners. Schaffner has not been a Board Member.

The Property has five parking spaces. Three are enclosed and two are outside. This case centers on the two outdoor parking spaces, which are on the east side of the Property. The Declaration defines the condominium and ownership of the condominium in terms of a Plat which is attached to and is a part of the Declaration. In their amended counterclaim, defendants allege the Developer attached the wrong maps/surveys to the Declaration as the Plat. The Plat did not accurately reflect the premises -- it did not depict any outdoor parking spaces. In fact, nowhere in the pre-amendment Declaration was there any mention of the outdoor parking spaces.

The Plat shows a wooden deck in the area where the outdoor parking spaces are. Although a wooden deck has been in existence on the Property since 1984, it is in a different shape and located in a different area than shown on the Plat.

Defendants contend the Plat attached to the Declaration is incorrect in two ways: (1) it does not correctly portray the shape or location of the wooden deck, and (2) it does not portray the outdoor parking spaces.

They allege the Developer and original purchasers of Unit 101 and 102 agreed the outdoor parking spaces would be limited common elements. In other words, only the owners of Unit 101 and Unit 102 would have the exclusive right to use the outdoor parking spaces -- a parking space apiece. Defendants went on to allege "the Developer and the original purchaser of Unit 103 agreed, ***, that Unit 103 would enjoy no use of the Property's outdoor parking spaces." (Emphasis in original).

Defendants also allege the Developer and each of the successive owners of Unit 101, 102, and 103, except for Jeff Draluc, "have at all times believed and understood that the Declaration granted exclusive use of the outdoor parking spaces to Units 101 and 102."

With respect to Jeff Draluc, defendants allege "in the last two months of Mr. Draluc's ownership of Unit 103, he became aware of the drafting errors in the Declaration." Defendants say that although Draluc acted consistently with the "agreement and understanding" that the outdoor parking spaces had been granted to Units 101 and 102 for their exclusive use, he would occasionally try to park in one of the outdoor parking spaces.

Defendants also allege Draluc told Schaffner that although Unit 103 did not have a right to use the outdoor parking spaces, he recently discovered drafting errors in the Declaration. Defendants contend Schaffner purchased Unit 103 from Draluc with "full knowledge that there were mistakes in the Declaration." And, "With such knowledge of the mistakes, since closing on his purchase of Unit 103, Mr. Schaffner has repeatedly used the Property's outdoor parking spaces and threatened to continue doing so absent intervention."

Schaffner's actions prompted the Association to convene a meeting. On or about July 8, 1999, the defendants, in their role as Board Members of the Association, served themselves and Schaffner with notice of special meeting to amend the Declaration "to correct an omission and error relating to the use of the two outdoor parking spaces." The special meeting was held on July 15, 1999.

At the meeting, defendants voted to amend the Declaration to provide that the two outdoor parking spaces would be reserved for their exclusive use as "limited common elements of Unit 101 and Unit 102". Naturally, Schaffner voted against the proposed amendment, but to no avail.

On December 20, 1999, defendants amended the Declaration (the "Amendment"). On January 3, 2000, defendants recorded the Amendment.

On February 23, 2000, Schaffner filed his two-count complaint seeking a declaratory judgment that the amendment to the Declaration was invalid and damages for breach of fiduciary duties (stayed pending this appeal).

In count I of his complaint, Schaffner alleges executing and recording the Amendment (1) "diminished the Common Elements of the Property thereby reducing the value of Schaffner's ownership interest in the Common Elements of the Property", (2) "unreasonably interfere with Schaffner's use of the Common Elements of the Property", and (3) "violate the provisions of the [Act]."

On March 27, 2000, defendants filed their answer, with affirmative defenses that included waiver and estoppel. They also filed a verified counterclaim seeking: reformation of the Declaration and related condominium documents, a declaratory judgment the amendment to the Declaration was valid, and injunctive relief.

Schaffner moved for judgment on the pleadings on his claim for declaratory judgment. Schaffner also filed a section 2-615 motion to dismiss defendants' affirmative defenses and verified ...

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