When Illinois condominium associations review their governing documents, the conversation typically centers on issues such as board authority, maintenance of common elements, special assessments, and amendment procedures. But one topic that creates conflict is developer-reserved rights. A recent unpublished opinion from the First District, River North Partners Holdings, LLC v. Museum of Broadcast Communications, 2025 IL App (1st) 241772-U, provides a valuable reminder that a developer cannot unilaterally rewrite material portions of a declaration under the guise of “correcting a clerical error.” The court’s decision reinforces long-standing principles under the Illinois Condominium Property Act (765 ILCS 605/1) that substantive amendments require proper owner approval.
Background
The dispute arose out of a commercial condominium in Chicago. The Museum of Broadcast Communications originally owned and redeveloped the building, eventually creating a five-unit commercial condominium. In 2012, River North Partners purchased Unit 1, which held 37% ownership of the common elements. The Museum retained the upper-floor units.
Years later, the Museum marketed Units 3, 4, and 5 for sale and offered the building’s air rights as part of the transaction. A group of purchasers agreed to buy the upper units and the air rights for $6 million. However, the recorded declaration never granted the Museum the right to sell the building’s air rights.
The declaration granted the Museum a limited and specific “Rooftop Development Right”, the exclusive right to construct a rooftop deck or rooftop gathering space “on the Building roof (or portions thereof).” It did not reserve for the Museum the entire airspace above the building without an upper boundary.
Realizing that the declaration did not expressly permit the sale of the air rights, the Museum unilaterally recorded a Special Amendment at closing. The amendment stated that the original declaration contained an “error” and that the Rooftop Development Right was “intended” to encompass not only the roof but also “the air space on and above the Building roof with no upper boundary.”
The Museum relied on a declaration provision that allowed the developer to record a special amendment to correct “clerical or typographical errors.” River North Partners objected and filed a lawsuit, arguing that the amendment was not a correction but a substantive expansion of rights that required unit-owner approval.
The trial court agreed and granted summary judgment in favor of River North Partners. The FH Kinzie purchasers appealed.
The Appellate Court’s Holding
The First District affirmed the trial court’s ruling and declared the special amendment void. The court held: “The special amendment…was not a correction of a clerical or scrivener’s error, but a substantive change; therefore, the special amendment is invalid.”
The court emphasized several key points:
- The developer’s substantive changes to the declaration were not a scrivener’s error.
The court cited Schaffner v. 514 W. Grant Place Condo. Ass’n, explaining that a clerical error is something like mistyping a number, omitting a word, or similar minor oversights, not the omission of an entire property right, such as air rights.
Here, the developer attempted to rewrite the declaration to include the entire airspace above the building. That change would materially affect ownership, development potential, and common-element allocation, which was far beyond a scrivener’s error.
- The original declaration already made sense without any reference to air rights.
The Rooftop Development Right allowed construction of rooftop decks, terraces, and access structures. These improvements naturally require the use of some airspace, but that does not imply ownership of unlimited air rights. The court emphasized that the declaration was negotiated between the Museum and River North Partners in 2012, further showing that the omission was not unintentional.
- The simultaneous recording of a new plat undermined the Museum’s argument.
If the original declaration merely contained a clerical mistake, there would have been no need to record a new plat redefining the roof as a limited common element with no upper boundary. The new plat demonstrated that the Museum was attempting a substantive reconfiguration of property rights.
- The developer’s reserved right to “correct errors” does not authorize substantive changes.
The court rejected the argument that “developer authority” granted through the declaration permitted this amendment. The developer could correct typos, not rewrite the declaration to confer new property rights upon itself.
Why This Case Matters for Illinois Condominium Associations
Although the order is unpublished, it offers important practical guidance for condominium association boards.
- Developers Cannot Expand Reserved Rights After the Fact
Condominium associations should carefully scrutinize any purported “special amendment” filed by a developer, especially shortly before a sale of units or development rights. Even if a declaration gives the developer broad amendment authority, the developer’s authority to amend the declaration is limited.
- Air Rights, Parking Rights, Storage Rights, and Rooftop Rights Must Be Expressly Reserved
The court reaffirmed that if a reserved right is not expressly included in the original declaration, it does not exist. Courts will not infer developer intent or supply missing terms, particularly when the missing term involves property interests.
- Substantive Amendments Require Proper Unit-Owner Approval
Under 765 ILCS 605/27 of the Illinois Condominium Property Act, material changes to ownership percentages, common-element allocations, or structural rights must be approved by the required majority. A developer cannot circumvent the Illinois Condominium Property Act by labeling a revision as a “clerical correction.”
Conclusion
River North Partners Holdings serves as a valuable reminder that condominium declarations are contracts, and their terms cannot be rewritten without following proper procedures. A developer cannot transform a limited rooftop development right into an unlimited air-rights conveyance through a “special amendment.” When an amendment substantially alters property rights, it must be approved by the unit owners as required under the Illinois Condominium Property Act (765 ILCS 605/1).
