Schaumburg State Bank v. Bank of Wheaton

555 N.E.2d 48, 197 Ill. App. 3d 713, 144 Ill. Dec. 151, 1990 Ill. App. LEXIS 683
CourtAppellate Court of Illinois
DecidedMay 16, 1990
Docket2-89-0691
StatusPublished
Cited by33 cases

This text of 555 N.E.2d 48 (Schaumburg State Bank v. Bank of Wheaton) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schaumburg State Bank v. Bank of Wheaton, 555 N.E.2d 48, 197 Ill. App. 3d 713, 144 Ill. Dec. 151, 1990 Ill. App. LEXIS 683 (Ill. Ct. App. 1990).

Opinion

JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, Schaumburg State Bank, as trustee, and Richard S. Ochwat, filed an action to quiet title in the circuit court of Du Page County pertaining to their one-eighth undivided interest in the common elements of the Mona Kea Condominiums (Mona Kea). Plaintiffs claimed that a purported easement on the common elements of the condominium property constituted a cloud on their title thereto. After conducting a bench trial, the trial court entered judgment in favor of defendants, and plaintiffs now appeal. At issue on appeal is whether Mona Kea’s board of managers (the board) had the authority to grant an easement over the common elements of the property to a third party.

On June 1, 1973, defendants Douglas L. Mains and Douglas B. Mains owned a parcel of real estate in Du Page County known as the Mona Kea Professional Park. On this date, the Mainses recorded a declaration of condominium ownership (the declaration) designating the property as a condominium pursuant to the Condominium Property Act (the Act) (Ill. Rev. Stat. 1973, ch. 30, par. 301 et seq.). The declaration stated that there were eight units in the condominium, and, appurtenant to each, the unit owner would also own a one-eighth undivided interest in the condominium’s common elements. The terms used in the declaration were to be interpreted in consonance with the correlative terms in the Act.

The declaration stated that the “percentages of common ownership appurtenant to each unit have been computed in accordance with the Act and are declared to be permanent in character and cannot be altered without the consent of all unit owners affected *** as expressed in an amended Declaration.” Furthermore, the declaration provided that the “common elements shall not be divided nor shall any right to partition any thereof exist.” The declaration also provided that, “[e]xeept for alteration in the common interest which cannot be done except with the consent of all unit owners,” the declaration could be amended by a vote of two-thirds of the unit owners. Such amendments were to be “effective when recorded.” The only aspect of the physical layout of the condominium property relevant here is that portion of the common elements which served as a driveway providing access to the units. The driveway was accessible at its western terminus from Schmale Road.

On July 31, 1973, plaintiff Schaumburg State Bank (Schaumburg) was deeded title to unit three in Mona Kea. Schaumburg held title to unit three as trustee under trust No. 366 for two beneficiaries, Glenn S. Schweitzer and Richard S. Ochwat. Schweitzer subsequently transferred his beneficial interest in unit three to Ochwat, who is also a plaintiff in the instant action. In December 1976, Schaumburg owned one Mona Kea unit, and the Gary-Wheaton Bank (Gary-Wheaton) held title to another unit in trust for defendants Ronald Severino, Donald Gustafson, Richard Neidballa and James Grissom under trust No. 1907. Title to the remaining six Mona Kea units was held in trust by the Bank of Wheaton for the Mainses under trust No. 2386.

On December 14, 1976, a special meeting of the Mona Kea unit owners was held to consider a proposed amendment to the declaration. The amendment would have empowered the board to grant a perpetual easement for the ingress and egress of vehicular and pedestrian traffic over Mona Kea’s common driveway to Gary-Wheaton, which owned a parcel of land adjoining Mona Kea (Gary-Wheaton parcel). In return, Gary-Wheaton would grant a similar easement over the Gary-Wheaton parcel to Mona Kea. The two easements would connect to form a continuous passageway running from Schmale Road on the Mona Kea property to Thornhill Drive on the Gary-Wheaton parcel. Without the connecting easements, Mona Kea would not be directly accessible from Thornhill Drive. All unit owners attended the December 14 meeting, and, with only the plaintiffs voting against it, the amendment was adopted by a vote of seven unit owners to one.

On December 27, Douglas B. Mains, as president of the board, executed an agreement for the establishment of the easements with Gary-Wheaton as provided by the amendment. The agreement stated that the easements were for the “mutual and joint benefit” of both parcels of property to afford better traffic circulation to each. The agreement was recorded on January 14, 1977. The amendment to the declaration authorizing the easements was not recorded until January 17, 1977.

The instant action was filed with the circuit court on December 16, 1982. A previously filed action had been dismissed for want of prosecution on December 17, 1981. Count I alleged that the easement over Mona Kea’s common elements was not valid and that GaryWheaton’s claim to the easement constituted a cloud on plaintiffs’ one-eighth undivided interest in the common elements. Count I asked the court to declare the easement void and to quiet title to the common elements. Count II sought injunctive relief, and count III sought damages in tort.

The parties filed cross-motions for summary judgment, and the trial court denied both motions. The court found that the easement upon the Mona Kea common elements constituted “an incorporeal hereditament which reduced the bundle of rights of all unit owners of the common elements.” The trial court, referring to the supreme court’s decision in Murray v. Haverty (1873), 70 Ill. 318, stated that the issue presented in the instant cause was “whether the grant and receipt of the mutual easements caused damage to the plaintiff’s interest in the common elements.” The court found that there was an issue of fact remaining as to whether plaintiffs’ interest was damaged and thus ordered the cause to proceed to trial on this question. A hearing on the injury to plaintiffs’ interest was held on June 14, 1989. The parties agreed that counts II and III of plaintiffs’ complaint would be dismissed and that plaintiffs would proceed on count I only.

At the hearing, Dr. Ochwat testified that he had maintained his dentistry office at unit three of Mona Kea since 1973. Unit three is located near the intersection of the two easements. Ochwat testified that vehicle noise from the driveway area was clearly audible in his offices even before the instant easements were created. Ochwat stated that, after the creation of the easements in 1977, a drive-in banking facility was constructed on the Gary-Wheaton parcel, and he estimated that the flow of traffic outside his office had increased about twentyfold since that time. The most troublesome result of this, Ochwat testified, was that traffic would sometimes back up in the driveway areas on those days that the bank was particularly busy, thus making access to his office from Schmale Road more difficult. Ochwat stated that the noise from this stationary traffic caused him to move his private office to the opposite side of the building and made it impossible for him to open any office windows. Ochwat testified that he and Schweitzer purchased unit three for approximately $115,000 in 1973.

Ronald W. Casper, a real estate appraiser, testified on behalf of defendants. Casper stated that a Mona Kea unit sold in 1987 for a price of approximately $240,000. The only sale prior to that one, Casper testified, occurred in 1984 for $210,000.

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Cite This Page — Counsel Stack

Bluebook (online)
555 N.E.2d 48, 197 Ill. App. 3d 713, 144 Ill. Dec. 151, 1990 Ill. App. LEXIS 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaumburg-state-bank-v-bank-of-wheaton-illappct-1990.