{
  "id": 3113369,
  "name": "MISSION HILLS CONDOMINIUM M-4 ASSOCIATION et al., Plaintiffs-Appellees, v. PHYLLIS M. PENACHIO, Defendant-Appellant",
  "name_abbreviation": "Mission Hills Condominium M-4 Ass'n v. Penachio",
  "decision_date": "1981-06-16",
  "docket_number": "Nos. 80-1220, 80-1888 cons.",
  "first_page": "305",
  "last_page": "310",
  "citations": [
    {
      "type": "official",
      "cite": "97 Ill. App. 3d 305"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "360 N.E.2d 510",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "46 Ill. App. 3d 7",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        2975559
      ],
      "pin_cites": [
        {
          "page": "10"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/46/0007-01"
      ]
    },
    {
      "cite": "31 Ill. 2d 631",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "opinion_index": 0
    },
    {
      "cite": "203 N.E.2d 730",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1965,
      "opinion_index": 0
    },
    {
      "cite": "54 Ill. App. 2d 271",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        5282465
      ],
      "year": 1965,
      "pin_cites": [
        {
          "page": "280"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-2d/54/0271-01"
      ]
    },
    {
      "cite": "157 N.E.2d 249",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1964,
      "opinion_index": 0
    },
    {
      "cite": "16 Ill. 2d 268",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        2760716
      ],
      "year": 1964,
      "pin_cites": [
        {
          "page": "285-86"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/16/0268-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 637,
    "char_count": 13805,
    "ocr_confidence": 0.839,
    "pagerank": {
      "raw": 6.087085966315723e-08,
      "percentile": 0.3777884347697491
    },
    "sha256": "abab992927230268dfbb09864a7d651918301a399f8490d1f6a70d461109426c",
    "simhash": "1:3a2ee71e640cd749",
    "word_count": 2142
  },
  "last_updated": "2023-07-14T15:36:18.348258+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "MISSION HILLS CONDOMINIUM M-4 ASSOCIATION et al., Plaintiffs-Appellees, v. PHYLLIS M. PENACHIO, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE DOWNING\ndelivered the opinion of the court;\nPlaintiffs Mission Hills Condominium M-4 Association (Association) and Paul Diamond brought this action seeking a mandatory injunction requiring defendant Phyllis M. Penachio, a condominium unit owner, to remove a storage pabinet she erected on a portion of the common elements adjacent to her automobile parking space. After defendant raised affirmative defenses in her answer to the complaint, plaintiffs moved for summary judgment on the ground that the Condominium Property Act (hereinafter C.P.A.) (Ill. Rev. Stat. 1979, ch. 30, par. 301 et seq.) expressly prohibits division of the common elements and thus mandates judgment against defendant. The circuit court granted summary judgment in favor of plaintiffs.\nDefendant asks this court to consider (l)(a) whether the circuit court erred when it ruled, as a matter of law, that erection of the storage cabinet violated the C.P.A., (b) whether that court erred when it awarded summary judgment in favor of plaintiffs; and (2) whether that court erred in awarding attorney\u2019s fees to plaintiffs.\nPlaintiffs\u2019 complaint alleges defendant erected a storage cabinet within a recess of the wall adjac\u00e9nt to defendant\u2019s indoor parking space; and that defendant\u2019s condominium property interests were held subject to provisions contained in the Mission Hills Condominium M-4 Declaration (declaration) which also submits the property to the provisions of the C.P.A. The declaration provides in article IV, section 7, that \u201c[n]o alteration of any Common Elements, or any additions or improvements thereto, shall be made by any Owner without the prior written approval of the [Association\u2019s] Board [of Managers].\u201d The declaration also provides that the instant parking area constitutes part of the common elements of the condominium complex. The complaint alleges defendant failed to acquire prior written approval for the construction of her storage cabinet and, therefore, erected the cabinet in violation of the declaration. The complaint seeks an order compelling defendant to dismantle her cabinet and an award of attorney\u2019s fees pursuant to the terms of the declaration regarding costs incurred incident to enforcement of its provisions.\nDefendant answered the complaint with general denials and the averment of facts constituting three affirmative defenses. Defendant alleges that between the date of her execution of the purchase agreement for her unit, June 17,1978, and the date she took up residence in that unit, November 23,1978, agents of the condominium developer authorized her to erect the cabinet; that said agents failed to inform her of the declaration\u2019s requirement of a written authorization; that said agents intended she rely upon their authorization; that she reasonably relied upon the authorization and constructed the cabinet; and that plaintiffs are now estopped to assert noncompliance with the declaration\u2019s requirement of a written authorization. Further, the answer alleged members of the Association\u2019s board of managers had knowledge of the construction of the cabinet on March 1,1979; that one member of the board used the cabinet to store his personal property; that members of the board told defendant construction of the cabinet did not violate rules or regulations of the Association; and that plaintiffs waived the requirement of a written authorization because they did nothing to object to the cabinet until August 6,1979, when defendant received a letter from plaintiffs\u2019 attorney requesting the cabinet be dismantled and removed.\nPlaintiffs then filed a motion for summary judgment alleging that defendant\u2019s affirmative defenses are of no effect because section 8 of the C.P.A. provides that any covenant or agreement permitting division of a common element is void. Plaintiffs aver defendant\u2019s erection of the storage cabinet is a division of the parking area which constitutes a prohibited \u201cpartition or division\u201d of the common elements.\nDefendant challenged the applicability of section 8 of the C.P.A. and requested summary judgment in her favor. The trial court found section 8 to apply to the instant facts. The court held defendant\u2019s erection of the cabinet constituted a prohibited \u201cdivision\u201d of the common elements and granted summary judgment in plaintiffs\u2019 favor. Defendant\u2019s appeal requests review of the circuit court\u2019s order. (Our case No. 80-1220.)\nPlaintiffs subsequently petitioned the circuit court for an award of attorney\u2019s fees pursuant to a provision contained in the declaration. Although defendant contested the petition on various grounds, the trial court granted plaintiffs\u2019 petition. Defendant filed an additional appeal seeking review of that award. (Our case No. 80-1888.)\nI\nAppeal No. 80-1220 seeks review of the circuit court\u2019s order of summary judgment for plaintiffs. Defendant contends summary judgment is improper because she raised three affirmative defenses which remain uncontested by plaintiffs. Defendant further contends the trial court erred when it ruled erection of the storage cabinet constituted a \u201cdivision\u201d as that term is used in the C.P.A. Defendant argues that in the absence of a statutory prohibition to the erection of her cabinet, the declaration governs the respective rights of the parties. Defendant contends that her uncontested affirmative defenses are sufficient to preclude a successful motion for summary judgment, and the circuit court accordingly erred when it granted plaintiffs\u2019 motion.\nPlaintiffs urge that the C.P.A. specifically and clearly provides that common elements shall remain undivided. They equate defendant\u2019s erection of the cabinet as effecting a separation or division of the common elements. Defendant, they argue, uses the storage cabinet with the purpose.of excluding access to other common owners. Furthermore, the instant statute expressly prohibits owners from bringing actions to divide the common elements. They argue that the effect of their failure to achieve removal of the cabinet would be a judicially sanctioned division of the common elements. Finally, they contend any permission or agreement to erect the cabinet results in an agreement to divide the common elements expressly prohibited by the statute.\nPlaintiffs\u2019 argument appears sound until the term \u201cdivision\u201d is examined in the context of other provisions in the statute and the declaration. At the time this suit was instituted, the C.P.A. permitted the creation of \u201climited common elements\u201d defined by the statute as portions of the common elements \u201cdesignated in the declaration as being reserved for the use of a certain unit or units to the exclusion of other units, including but not limited to balconies, terraces, patios and parking spaces or facilities.\u201d (Ill. Rev. Stat. 1979, ch. 30, par. 302(s).) A declaration can therefore provide for creation of limited common elements.\nIf plaintiffs\u2019 argument is to be accepted, that is, if the erection of a cabinet constitutes a statutorily prohibited \u201cdivision\u201d of the common elements, then any physical division of the common elements is a violation of the prohibition. The statute, however, expressly permits division of the common elements where the declaration reserves portions of those elements for the use of certain unit owners (e.g\u201climited common elements\u201d). The instant declaration designates parking spaces, balconies, and specific storage areas as common elements over which individual unit owners are granted perpetual and exclusive easements (i.e., the use of these areas is reserved to certain unit owners to the exclusion of others). The instant declaration requires Association permission for establishment of other exclusive use areas. Such separate use clearly constitutes a \u201cdivision\u201d as that word is used by plaintiffs in their argument here. But in order to give effect to the internal consistency of the statute, the creation of exclusive use areas or limited common elements must not constitute a \u201cdivision\u201d of the common elements as that term is used in section 8 of the C.P.A. Therefore, a \u201cdivision\u201d of the common elements means something other than what plaintiffs assert here. A plain reading of the statute compels us to conclude that \u201cdivision\u201d does not mean the mere physical use of an the\nWe believe our conclusion \u00bb J or d{rf d word \u201cpartition\u201d as used in law. Attempts \u201cpartition\u201d often contain an instance of the word \u201cdivision.\u201d (See, e.g., Peck v. Peck (1959), 16 Ill. 2d 268, 285-86, 157 N.E.2d 249; Regas v. Danigeles (1964), 54 Ill. App. 2d 271, 280, 203 N.E.2d 730, appeal denied (1965), 31 Ill. 2d 631.) Review of the language in \u201cAn Act in relation to the partition of real estate 9 9 9\u201d (Ill. Rev. Stat. 1979, ch. 106, par. 44 et seq.) reveals a dependence upon the use of the word \u201cdivision\u201d or a variant thereof. Although this statute is relatively short, \u201cdivision\u201d or a variant is used 14 times. The conjunction, \u201cpartition and division,\u201d is used twice. Moreover, a standard law dictionary definition of \u201cpartition\u201d includes instances of \u201cdivision\u201d or a variant. Hence, the legal use of the words \u201cpartition\u201d and \u201cdivision\u201d is frequently concomitant. Since a successful action for partition results in the alteration of legal title in property, we believe it reasonable to conclude that a successful action for \u201cdivision,\u201d as used in section 8 of the statute, obtains the same result (see 2A Sutherland, Statutory Construction \u00a7\u00a746.06, 47.37 (4th ed. 1973)). Similarly, we conclude that the use of the word \u201cundivided\u201d in that section must be consistently construed (i.e., with reference to legal title in property). The instant plaintiffs do not allege defendant\u2019s construction of the cabinet is an action seeking alteration of legal title in property. Thus, although the cabinet effects a physical division of the common elements, it is not subject to the proscription of section 8. Accordingly, section 8 of the C.P.A. does not require entry of summary judgment in plaintiffs\u2019 favor.\nB\nSummary judgment is properly granted a movant only where the pleadings, affidavits and exhibits show there is no genuine issue as to any material fact. (Presto Manufacturing Co. v. Formetal Engineering Co. (1977), 46 Ill. App. 3d 7, 10, 360 N.E.2d 510.) Defendant alleges facts in support of three affirmative defenses to which plaintiffs assert the statutory proscription argument. We find that statutory argument unpersuasive. Since defendant\u2019s affirmative defenses are currently uncontested and since she alleges facts which, if found true, might defeat plaintiffs\u2019 claim, genuine issues as to material fact exist. Accordingly, summary judgment for plaintiffs is inappropriate here.\nII\nIn appeal No. 80-1888, the circuit court awarded to plaintiffs attorney\u2019s fees. That award was based upon the declaration\u2019s provision which assesses such fees where the Association pursues legal remedies to enjoin breach of declaration provisions. The attorney\u2019s fees provision implicitly assumes success upon such action. The circuit court reasoned that since the C.P.A. was incorporated within the declaration, a purported violation of that statute constituted breach of a declaration provision. W\u00e9 express no conclusion as to this reasoning. We do hold, however, that the statute does not mandate summary judgment for plaintiffs. The basis for the circuit court\u2019s award of fees no longer exists. The award of attorney\u2019s fees is, accordingly, reversed.\nIn accordance with the above stated reasons, we reverse the circuit court of Cook County\u2019s orders granting summary judgment and attorney\u2019s fees in favor of plaintiffs. The cause is remanded for further proceedings.\nAppeal No. 80-1220 reversed and remanded; appeal No. 80-1888 reversed.\nHARTMAN, P. J., and STAMOS, J., concur.\nThe report of proceedings discloses the circuit court believed section 8 of the Illinois Condominium Property Act (Ill. Rev. Stat. 1979, ch. 30, par. 308) applied to the instant case because \u201cthe statute mandated that there be no division of the common elements, and defendant\u2019s actions in the instant case clearly constituted an illegal division of the common elements.\u201d\nSection 8 of the statute provides, in pertinent part:\n\u201cAs long as the property is subject to the provisions of this Act the common elements shall \u201c \u00b0 * remain undivided, and no unit owner shall bring any action for partition or division of the common elements. Any covenant or agreement to the contrary shall be void.\u201d (Ill. Rev. Stat. 1979, ch. 30, par. 308.)\nThe instant declaration submits the property to the Condominium Property Act in accordance with the terms of section 3 of that Act. See Ill. Rev. Stat. 1979, ch. 30, par. 303.\nA standard definition of \u201cpartition\u201d is:\n\u201cThe dividing of lands held by joint tenants, coparceners, or tenants in common, into distinct portions, so that they may hold them in severalty. And, in a less technical sense, any division of real or personal property between co-owners, resulting in individual ownership of the interests of each.\u201d Black\u2019s Law Dictionary 1008 (5th ed. 1979).\nThe statute regulating partition actions provides two ways to effect partition: (1) division of property held in common with the result that each party with an interest holds his respective share to the exclusion of other interests or (2) division of the proceeds of a sale of the property where division of the property is inappropriate. See Ill. Rev. Stat. 1979, ch. 106, par. 45.",
        "type": "majority",
        "author": "Mr. JUSTICE DOWNING"
      }
    ],
    "attorneys": [
      "Panichi & Gritton, Ltd., of Chicago, for appellant.",
      "Russell M. Pelton and Pat Chapin, both of Chicago (Peterson, Ross, Schloerb & Seidel, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "MISSION HILLS CONDOMINIUM M-4 ASSOCIATION et al., Plaintiffs-Appellees, v. PHYLLIS M. PENACHIO, Defendant-Appellant.\nFirst District (2nd Division)\nNos. 80-1220, 80-1888 cons.\nOpinion filed June 16, 1981.\nPanichi & Gritton, Ltd., of Chicago, for appellant.\nRussell M. Pelton and Pat Chapin, both of Chicago (Peterson, Ross, Schloerb & Seidel, of counsel), for appellees."
  },
  "file_name": "0305-01",
  "first_page_order": 327,
  "last_page_order": 332
}