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Ownership percentages Q&A Revisited! PDF Print E-mail
Thursday, 19 January 2012 11:29

An "Ask the Expert" Q&A from Tuesday, December 13th (Our 6 units have the same ownership percentage though some units are much larger. How can we change this?) prompted a response from an attorney friend of the Chicago Condo Resource.

Attorney James Erwin of Erwin & Associates, LLC has experience litigating this issue.  Here are his findings in regards to how the courts have decided lawsuits addressing ownership percentages:

"Common element percentages in an Illinois condominium association are established by the developer based on the original values or prices.  Once established by the developer, these percentages generally cannot be amended except for by unanimous approval of the unit ownership. As stated in Section 4(e) of the Illinois Condominium Property Act, “such percentages shall remain constant unless otherwise provided in this Act or thereafter changed by agreement of all unit owners.”

While Section 27(b) of the ICPA provides a mechanism for correcting what are known as “scriveners’ errors,” courts have ruled that changes to the common elements percentages schedules in a declaration do not generally fall within this purview.  The exception to this rule is where there are simple mathematical errors such as failure to total to 100% of the common elements or one or more units, but less than all, assigned to more than 100% of the total common element percentage.

Therefore, unless the changes sought fall within the narrow exception of Section 27(b), a unanimous unit ownership approval will be required to amend the common element percentages.Evidence that two units of two significantly different sizes share the same assessment level will not be sufficient evidence to validly qualify for a “scriveners’ error” amendment.

One must remember that part of the rationale behind this is that, when purchasers buy their units, they have the right to request and review a copy of the declaration. Thus, they have an opportunity to see any perceived disparities in advance and back out of the purchase if they feel they would be unfairly assessed."

James A. Erwin   Erwin & Associates, LLC
4043 N Ravenswood Ave, Suite 208, Chicago, Illinois 60613
773.525.0153

 

 

 

 

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