Schaumburg State Bank v. Bank of Wheaton

• Decision Date: 16 May 1990
• Docket Number: No. 3580,No. 1645,No. 2-89-0691,No. 2386,No. 366,366,2386,3580,1645,2-89-0691
• Citation: 555 N.E.2d 48,197 Ill.App.3d 713
• Parties: , 144 Ill.Dec. 151 SCHAUMBURG STATE BANK, as Trustee under Trust; and Richard S. Ochwat, Plaintiffs-Appellants, v. BANK OF WHEATON, as Trustee under Trust; Douglas L. Mains; Gary-Wheaton Bank; Gary-Wheaton Bank, as Trustee under Trust; Mona Kea Professional Park; Wheaton National Bank as Trustee under Trust; Gary Ronald Severino; Donald Gustafson; Richard Neidballa; and James Grissom, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 48

555 N.E.2d 48 197 Ill.App.3d 713, 144 Ill.Dec. 151 SCHAUMBURG STATE BANK, as Trustee under Trust No. 366; and
Richard S. Ochwat, Plaintiffs-Appellants,
v.
BANK OF WHEATON, as Trustee under Trust No. 2386; Douglas
L. Mains; Gary-Wheaton Bank; Gary-Wheaton Bank, as Trustee
under Trust No. 3580; Mona Kea Professional Park; Wheaton
National Bank as Trustee under Trust No. 1645; Gary Ronald
Severino; Donald Gustafson; Richard Neidballa; and James
Grissom, Defendants-Appellees. No. 2-89-0691. Appellate Court of Illinois,
Second District. May 16, 1990.

Page 49

[197 Ill.App.3d 715] [144 Ill.Dec. 152] Arnold B. Kalnitz, William J. Juneau, Chicago, for Schaumburg State Bank and Richard Ochwat.

R. Terrence Kalina, Rathje, Woodward, Dyer & Burt, Wheaton, for defendants-appellees.

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 [197 Ill.App.3d 716] 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]xcept 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...