Madden v. Scott

2017 IL App (1st) 162149
Appellate Court of Illinois·Decided August 11, 2017·No. 1-16-2149·Unpublished·Cited by 1 cases

Opinion

2017 IL App (1st) 162149

SIXTH DIVISION

Opinion filed: August 11, 2017

No. 1-16-2149

IN THE

APPELLATE COURT OF ILLINOIS FIRST DISTRICT

JAMES MADDEN, as Successor Trustee of the ) Appeal from the Kathleen R. Madden Trust Under the Trust Agreement ) Circuit Court of dated November 15, 1995; and ELIZABETH ) Cook County McDONNEIL and JENNIFER OBERHEIDE, as ) Successors in Interest to the Kathleen R. Madden Trust )

Under the Trust Agreement dated November 15, 1995, )

)

Plaintiffs and Counterdefendants-Appellees, )

)

v. ) No. 09 CH 19679 )

THOMAS R. SCOTT and SYLVIE SCOTT, )

)

Defendants and Counterplaintiffs-Appellants, )

) Honorable

(Boardwalk of Park Ridge Condominium Association, ) Rita Novak, Counterdefendant). ) Judge, Presiding.

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

Justices Rochford and Delort concurred in the judgment and opinion.

OPINION

¶1 The defendants and counterplaintiffs, Thomas R. Scott and Sylvie Scott, (hereinafter referred to as the Scotts), appeal from orders of the trial court: (1) granting both an implied easement and an easement by prescription over a portion of a condominium unit owned by them for purposes of ingress to, and egress from, an adjoining condominium unit; (2) granting an

injunction, permanently enjoining them and the subsequent owners of their condominium unit from, inter alia, interfering with, or obstructing, the use of the easement by the owners of the adjoining condominium unit; (3) directing them to remove certain specified personal property from the easement and enjoining them from placing those or similar items in the easement; (4) directing that the sliding glass door which allows access to the easement from the outside remain unlocked until the door is rekeyed and the owners of the adjoining unit are given duplicate keys to the lock; (5) providing that the court’s orders shall run with the land; and (6) denying their motion to remove a cloud on the title to their condominium unit. For the reasons which follow, we affirm the orders of the trial court.

¶2 The following factual recitation is taken from the pleadings on file, the evidence introduced during the trial of this cause, and the trial court’s factual findings based upon that evidence.

¶3 Lou Elliot constructed six condominium units as models for a planned condominium development. The six model units were numbered 10, 20, 30, 40, 50, and 60. Only Units 50 and 60 are involved in this litigation. Units 50 and 60 are adjacent, with Unit 60 being to the east of Unit 50.

¶4 Elliot abandoned the project, and at the request of the LaSalle National Bank, the project was taken over by Howard Sellergren. At the time that Howard Sellergren came into title to the project, the basic construction of Units 50 and 60 was complete, including a vestibule area adjoining both units (hereinafter referred to as the vestibule). The vestibule is approximately 9 feet along its eastern and western sides and 20 feet along its northern and southern sides. The majority of the vestibule is located within the boundaries of Unit 50 with a small portion located within the boundaries of Unit 60. At the time that Howard Sellergren took over the project, the

southern side of the vestibule consisted of windows and a sliding glass door leading to the exterior of the building in which units 50 and 60 are located. The sliding glass door is located in that portion of the vestibule which lies within the boundaries of Unit 50. On the north wall of the vestibule is the front door to Unit 50 and on the east wall is the front door to Unit 60. There is a door to Unit 50’s garage located on the west wall of the vestibule. There is also a door to Unit 50 which opens to a patio on the north side of the building. The front door to Unit 60 is located within that portion of the vestibule that is within the boundaries of Unit 60. However, to access the front door to Unit 60 from the outside, one must enter through the sliding glass door and then cross a portion of the vestibule located within the boundaries of Unit 50. There are four other doors to Unit 60; two leading to a patio on the west side of the building, one on the southeast corner of the unit leading to its garage, and one on the northeast corner of the unit.

¶5 After coming into title to Units 50 and 60, Howard Sellergren did additional work to the units, including the installation of a decorative front door to Unit 60 and tile on the vestibule floor. He also installed mailboxes for both Unit 50 and Unit 60 outside of the sliding glass door leading to the vestibule and placed the unit numbers 50 and 60 on the outside of the building above the sliding glass door.

¶6 On February 8, 1982, Howard Sellergren transferred title to Unit 60 either to his brother, James Sellergren, or into a land trust, the beneficiary of which was his brother. James Sellergren and his wife resided in Unit 60 for about 2 years. In the period during which James Sellergren resided in Unit 60, he and his family members commonly entered Unit 60 through the door from the garage. However, guests accessed Unit 60 by entering the building through the sliding glass door on the south side of the vestibule, crossing over a portion of Unit 50 located within the vestibule, and entering Unit 60 through its front door. In addition, packages intended for the

occupants of Unit 60 were dropped off in the vestibule, directly in front of the door to Unit 60. During the period that James Sellergren occupied Unit 60, the sliding glass door in the vestibule was never locked.

¶7 On October 20, 1982, Howard Sellergren transferred title to Unit 50 to Thomas Woelfle. In 1983, Ann Matturo purchased Unit 50, and in 1995, she rented the unit to the Scotts. Sometime in 2002 title to the unit was transferred into a trust with Yetta Matturo Weiland, Ann Matturo’s daughter, as trustee. Ms. Weiland testified that the layout of the vestibule, the location of the front doors to Units 50 and 60, the mailboxes for both units, and the exterior unit numbers remained the same from the time that her mother purchased the unit until it was sold to the Scotts in May 2006. According to Ms. Weiland, the sliding glass door on the south side of the vestibule was never locked, and the vestibule was the means of access to the front doors of both Unit 50 and Unit 60.

¶8 Joseph W. Madden, Jr. and Kathleen R. Madden (hereinafter referred to as the Maddens) purchased Unit 60 on June 30, 1986, and took up residence there. At the time of their purchase, the mail boxes and door bells for both Unit 50 and Unit 60 were located on the exterior of the building next to the sliding glass door leading to the vestibule, and the unit numbers were located on the exterior of the building above the sliding glass door. Title to Unit 60 was transferred by the Maddens to Kathleen R. Madden as trustee of the Kathleen R. Madden Trust, u/t/a dated November 15, 1995 (hereinafter referred to as the Madden Trust). At all times relevant, the Maddens, their family members and guests entered the building through the sliding glass door, crossed over the vestibule, and entered Unit 60 through the front door. Jennifer Oberheide, one of the Maddens’ daughters, testified that she used the front door to Unit 60 located in the vestibule when she visited her parents, but about four years before the trial, or in 2011, she began

using the door from the garage when entering and exiting the unit as the sliding glass door leading to the vestibule was locked. James Madden, Joseph W. Madden Jr.’s brother, testified that, about four years before trial, he too began using the door from the garage when entering and exiting Unit 60.

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Madden v. Scott
2017 IL App (1st) 162149 (Appellate Court of Illinois, 2017)