Can a developer designate a common element into a parking space, even if the parking space was not identified in the plat of survey? The Illinois appellate court addressed this question in Stuewe v. Lauletta, 93 Ill. App. 3d 1029, 418 N.E.2d 138 (1st Dist. 1981). Parking can be a source of tension in Illinois community associations.
What many Illinois community association boards and unit owners do not appreciate is that a parking space carved out of the common elements is not the developer’s or the board’s to give away by handshake, side letter, or lease. It belongs to every owner in the association until the governing documents are properly amended to say otherwise.
Stuewe remains a foundational Illinois appellate decision on that point as the Illinois appellate court’s reasoning continues to control how condominium associations may reallocate common elements today. This article analyzes the court’s decision in Stuewe and provides practical guidance for Illinois community associations seeking to designate or reassign parking spaces.
Background of the Illinois Condominium Common Element Parking Space Dispute
The dispute arose at the Les Chateau condominium. In October 1972, James and Phyllis Lauletta entered into a contract to purchase a condominium unit and contracted for two parking spaces, both of which the developer represented would be located inside the garage. When it turned out that two interior spaces were not available, the developer designated a substitute space, space 3A, outside the garage at the front of the building. However, that space had never been identified in the property survey.
At closing, the developer’s president and the Laulettas executed a 99-year lease for the disputed space, together with a covenant to record an easement. The Laulettas moved into their unit in December 1972. By early 1973, the shrubbery had been cleared from the space, and the Laulettas began using it. The developer told the Laulettas that it would amend the condominium declaration to provide for the new space, but so far as the record showed, that amendment was never recorded.
The Les Chateau condominium association assumed management of the building from the developer on November 1, 1973. Several unit owners eventually sued, alleging that the lease and easement of a portion of the common elements for the Laulettas’ exclusive parking space were improper. The trial court sided with the Laulettas, reasoning that the developer had operated the condominium before the association came into existence and that it would be inequitable to strip the Laulettas of the space they had bargained for. The unit owners appealed.
Why the Illinois Appellate Court Voided the Common Element Parking Space Lease
The Illinois Appellate Court reversed, holding that the attempted lease and easement were ineffective because the developer failed to follow the declaration’s amendment procedures.
The Disputed Space Remained Part of the Common Elements
The court began with the declaration itself, which was recorded in February 1972 and designated all portions of the property as common elements, except the units. The recorded survey identified certain areas as parking spaces, but the disputed space 3A was not among them, meaning it remained part of the common elements.
An Exclusive Parking Space Diminishes the Common Elements for Every Owner
The court rejected the Laulettas’ argument that assigning the space merely redesignated a use without affecting anyone’s percentage of ownership. Because the declaration granted each unit a perpetual and exclusive easement over its parking space, carving out a new exclusive space for one owner necessarily diminished the common elements available to everyone else. In the court’s words, the common elements “as to all other tenants have thereby been diminished.”
The Developer Did Not Satisfy the Declaration’s Amendment Requirements
The declaration set strict conditions on any changes to the common elements. Article III of the declaration provided that each owner’s percentage interest in the common elements, once determined, could not be changed without the unanimous approval of all owners. Article XIII of the declaration required that any amendment to the declaration be signed by the board, all owners, and all mortgagees of record, a requirement the developer failed to satisfy.
Having the Votes Was Not Enough Without the Required Formalities
The court then addressed the developer’s position that the space fell within the declaration’s parking provisions rather than Article III, and therefore required only a three-fourths vote to amend. Even accepting that premise, the court found that the developer’s assignment of the parking spaces still did not comply with the declaration. It was undisputed that the developer controlled 15 of the 19 units and, together with the Laulettas, held the three-fourths voting percentage necessary to amend those provisions. But although the applicable amendment procedure required more than votes, it demanded a written instrument, an affidavit certifying that notice had been mailed to mortgagees by certified mail, and recordation with the Cook County Recorder of Deeds. There was no evidence that any of that occurred. Because the developer did not follow the required procedure, the attempted amendment was ineffective regardless of whether the votes existed.
Key Takeaways on Illinois Common Element Parking Space Assignments
Stuewe offers several lessons and practical guidance for Illinois condominium associations:
- Common elements belong to all owners until properly reallocated. A developer or board cannot lease, convey, or grant exclusive use of a common element area, including a parking space, simply because it seems fair or convenient.
- Assigning an exclusive-use space diminishes the common elements for everyone. Even if ownership percentages stay the same on paper, granting one owner exclusive rights reduces what remains available to the rest.
- Voting power alone is not enough. Having the requisite percentage of votes does not validate an amendment. The declaration’s procedural requirements, such as notice, a written instrument, and recordation, must be satisfied.
- Developer control does not excuse compliance. The fact that the developer ran the property before turnover did not give them the right to bypass the declaration.
Common Sources of Parking Disputes in Illinois Community Associations
While Stuewe involved a developer’s improper assignment of a common element space, parking disputes surface in Illinois community associations in many other recurring forms. One of the most common arises at developer turnover, when boards discover that spaces promised or leased during the declarant-control period were never properly documented or recorded, leaving ownership and use rights unclear.
Disputes also frequently stem from confusion between common elements and limited common elements. Owners often assume that a space they have used for years is “theirs,” even though it was never formally assigned as a limited common element in the declaration or on the recorded plat of survey. Owners sometimes attempt to sell, lease, or transfer parking spaces to other residents without recognizing that such transfers may require board approval or an amendment to the governing documents.
Enforcement issues are another frequent flashpoint, as residents park in visitor spaces, occupy spaces assigned to others, or store boats, trailers, or commercial vehicles in violation of the rules. In each of these scenarios, Illinois community associations must remember that the association’s recorded governing documents define parking rights, and any change to those rights must follow the procedures set forth in those documents.
Practical Guidance for Illinois Community Associations Handling Parking
Illinois community associations should take the following steps when dealing with parking assignments or other reallocations of common elements:
- Locate the amendment procedure first. Before assigning or reassigning any common element space, review the declaration to identify which provision governs and what voting threshold and formalities apply.
- Record everything. An amendment or easement affecting the common elements is generally ineffective until it is recorded with the county Recorder of Deeds. A vote without a recorded instrument accomplishes nothing.
- Provide the required notice. Confirm that notice to owners and mortgagees is given in the exact manner prescribed by the declaration.
- Do not rely on developer promises or side agreements. Buyers and boards should verify that any exclusive-use space is actually reflected in the recorded declaration and survey, not merely in a lease or a covenant to record an easement at some future time.
- Audit developer-era arrangements at turnover. New boards should review any parking assignments or common-element conveyances made during developer control to confirm that they were properly documented and recorded.
Stuewe v. Lauletta serves as a reminder that the common elements of an Illinois condominium are not the private inventory of a developer or a board. They belong collectively to the owners, and they can be reallocated only by following the declaration’s amendment procedures. A convenient lease or an informal promise to “fix it later” is no substitute for a properly adopted and recorded amendment.
Illinois community associations considering the designation or reassignment of parking spaces or other common element areas should consult experienced legal counsel before acting. The attorneys at Hirzel Law, PLC regularly counsel Illinois community associations on governing document amendments, common element issues, and compliance with the Illinois Condominium Property Act.
