Appeal from the Circuit Court of Cook County 09 CH 32655 Honorable Mary Ann Mason, Judge Presiding
The opinion of the court was delivered by: Justice McBRIDE
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Epstein and Justice J. Gordon concurred in the judgment and opinion.
¶ 1 The defendant, a Chicago residential condominium association, appeals from a summary judgment order in favor of the plaintiffs, the owners of two corner condominium units at the end of a common element hallway, based on the circuit court's finding that the plaintiffs were statutorily entitled to incorporate about eight feet of the hallway into their units as a private foyer accessible only to them because the space was not "necessary or practical for use" by other unit owners. On appeal, the condominium association contends the court misconstrued sections 4(e) and 31 of the Illinois Condominium Property Act (765 ILCS 605/4(e), 31 (West 1998)) (Act)) and the pertinent language of the condominium declaration.
¶ 2 The facts are undisputed and are as follows. The plaintiffs' condominium units are on the twenty-third floor of a 32-story building which was constructed in Chicago in 2008 at the intersection of 14th Street and South Michigan Avenue. The building was named "1400 Museum Park" but is commonly known as 100 East 14th Street. The condominium declaration recorded by the developer in May 2008 indicates the lower floors of the building are devoted to parking spaces, there are approximately 10 units per residential floor, and there are a total of about 250 residential units of varying sizes in the building.
¶ 3 In June 2008, husband and wife Michael and Christine Picerno closed on the purchase of unit 2310, a corner unit, and Christine's mother, Noris Arias, closed on the purchase of the adjacent corner unit, 2301. Although not stated by the parties, the record indicates that Noris resided or resides in the unit with her husband, Belasario. The front doors of the two units are opposite each other at the end of the common element hallway and the units share a common wall.
¶ 4 In August 2008, an attorney representing the Picernos and Arias sent a letter to the condominium association announcing their intention to "install a common front door, and connect their two entrances for safety and convenience." Although this wording suggested that a joint entryway would be cut into the wall at the end of the hallway, an attached contractor proposal disclosed plans to actually "BUILD A WALL" somewhere in the hallway and hang the new common entrance door within this structure, at a cost of more than $4,000 for materials and labor. The letter indicated "this modification is specifically permitted by paragraph 11 of the condominium declaration." However, the Picernos and Arias, whom we will refer to collectively as the Picernos, did not proceed with these plans.
¶ 5 In February 2009, Michael Picerno again wrote to the association, "seek[ing] approval to a build a common door between Units 2301 and 2310" based on paragraph 11 of the declaration. He stated, "Our decision to purchase two units in the 1400 Museum Park Building was solely based on being able to build a [wall in the hallway which would contain a] common door between [the units]."
¶ 6 The record indicates Michael's letter was forwarded to the association's attorney and that in March 2009, the attorney sent an email to the board approving the proposal. The attorney quoted section 31 of the Illinois Condominium Property Act (765 ILCS 605/31 (West 1998)) and indicated the law firm could, at the petitioning unit owners' expense, draft an amendment to the condominium declaration stating a portion of common element hallway was being "incorporated into the combined unit." The record on appeal also indicates "Balasario and Noria Aria" [sic] paid the law firm's bill for this opinion. Nevertheless, after Michael submitted architectural plans to the board, it rejected the proposal.
¶ 7 At this juncture, attorneys for the Picernos and the board attempted to negotiate a solution and the Picernos threatened to file the instant declaratory judgment action. In a letter dated August 18, 2009, the association's attorney spelled out the board's position:
"Through verbal conversations between your clients and the Board of Directors ('Board'), and your correspondences, your clients have requested a purported 'unit combination' per Section 31 of the *** [Act]. *** Your clients are not requesting merely a unit combination (combining two units owned by the same unit owner by removing a demising wall between the units), [to] which the Board has no objection, but in fact, are requesting the private and exclusive use of approximately eight feet (35 square feet) of Common Element hallway space. Both your correspondence and the draft complaint cloak the conversion of Common Element hallway space as part of a 'unit combination' which is at best, an erroneous and misguided understanding of the law on this issue, and [at] worst, disingenuous. As such, while you have loosely used the term 'unit combination' in all your correspondences and draft complaint, your clients['] demands for hallway space exceed what is allowed per Section 31."
¶ 8 The letter continued with a discussion of legislative history indicating "Section 31 of the Act was adopted to allow unit owners in condominiums to combine two (or more) units by removing a demising wall separating the units *** with minimal intervention by the board of directors," precedent indicating the proposed change required "100% unit owner approval," and the board's conclusion that it could not allow the hallway to "become a Limited Common Element to Your clients' Unit," but was willing to make it "a licensed area of the Common Elements - upon the following conditions:
"1. Re-Submission of plans and specifications of the proposed improvements to the Common Elements showing a single door for hallway door uniformity (the currently submitted plans show a double door, which is not acceptable to the Board) ***;
2. Your clients pay for an Association retained architect to review and approve the plans and specifications;
3. Your clients fund an escrow with the Association to cover any future damage *** [and the removal of] any improvements *** at a future date;
4. All contractors *** be fully insured and bonded and [the Picernos' insurance policy] name the Association, managing agent, ...