can get a variance from the Association. A homeowner, Benck, entered into an agreement with the Association, pursuant to paragraph 17, to build a pool and cabana on the side of her property. This was because the back of her lot was mostly wetlands and not suitable for constructing a pool, so this was reason to permit the variance. Benck’s neighbor, Blazina, filed a complaint to enjoin the construction of the pool. The third amended complaint is the subject of the appeal. In the complaint, Blazina alleged that the 2013 Convenants were void because they were not adopted in accordance with the original covenants for the Association, herein after referred to as the 1991 Covenants. Her allegation is based on the requirement that the signed consent of two-thirds of the owners, with said signatures be recorded. It is undisputed that the actual signatures were not recorded, but an affidavit averring that the signatures had been obtained was recorded. The Association moves to dismiss the complaint because Blazina “neglected to quote the sentence immediately following paragraph C, which stated that ‘[a] recorded certificate shall be deemed conclusive evidence thereof with regard to compliance with the provisions of this section.’" James A. Blazina Revocable Tr. v. Trust, 2021 IL App (2d) 200387-U, ¶ 12. Blazina responded to the motion to dismiss by claiming that, "Paragraph 17 *** states, 'The Association hereby reserves the right to enter into agreements with the Owner of any Lot or Lots without the consent of owners of other Lots of adjoining or adjacent property to deviate from any or all of the Covenants ***.' *** Paragraph 17 makes no reference to the Board, only the Association. id . at ¶ 15.
The Circuit Court granted the Association’s motion to dismiss. Blazina appealed.
The Appellate Court first addressed the amendment procedure in the 1991 Covenants. The Court found that the filing of an affidavit was in compliance with amendment procedure because the final paragraph provides for an alternative means by which proof of the signature requirement can be met. Therefore, the Court found that the 2013 Covenant is valid because it complied with the amendment procedure in the 1991 Covenants. Next, Blazina argues that the variance can only be granted if two-thirds of the Association approve it because it is essentially an amendment to the 2013 Covenants. She argues that paragraph 17 clearly lists the Association, rather than the Board, so that means the amendment procedure applies. The Court disagrees because they found that the 2013 Covenants clearly provide that the Association operates through its Board of Directors. Moreover, the Court found that Blazina’s interpretation of paragraph 17 would render the provision meaningless. For the foregoing reasons, the Court affirmed the decision of the trial court.
Bd. Of Dirs. v. Bourdage (First District - Fourth Division, May 6, 2021)
On June 20, 2018, the Board of Directors of Winnitt Park Condominium Association, herein after referred to as Association, filed a complaint for eviction against Bourdage, herein after referred to as Unit Owner. Count 1 of the complaint alleged the non-payment of assessments from July 31, 2017 and October 27, 2017. Count 2 of the complaint sought a sale of her unit in a judicial sale for multiple violations of the governing document. The Unit Owner alleged that she was not provided an opportunity to defend herself because she was unavailable on the date of the hearing selected by the Association.
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