dissenting:
I respectfully dissent.
Although I agree with the majority’s statement of the law on statutory construction, I disagree with their conclusion that “[i]f we were to read section 27(b)(1) to apply to changes in ownership of common element interest, we would render section 4(e) meaningless.” 297 Ill. App. 3d at 295.
The historical and practice notes for the Act indicate that 27(b) “provides a summary procedure to correct omissions or errors in condominium instruments. Omissions or errors include provisions which conflict with current case and statutory law, typographical or similar types of mistakes, and provisions in a declaration or by-laws which mutually conflict with each other.” 765 ILCS Ann. 605/27(b), Historical & Practice Notes, at 174 (Smith-Hurd 1993). I agree with defendant in this case and believe that there is a genuine issue of material fact regarding whether the percentages of ownership interest were determined in compliance with section 4(e) in the first place, and whether, according to the developer’s deposition testimony, there might have been in part a typographical error in recording the percentages. If so, I believe that section 27(b)(1) could have been used without rendering section 4(e) meaningless by correcting a fundamental error in establishing the percentages. Section 4(e) sets forth the method of establishing the percentages and states that “having once been determined and set forth as herein provided, such percentages shall remain constant unless otherwise provided in this Act or thereafter changed by agreement of all unit owners.” 765 ILCS 605/4(e) (West 1996). The majority relies on Parrillo to indicate that the only way to correct the percentages is by agreement of all unit owners. I am not convinced that Parrillo provides such an absolute rule. Although that case quotes section 4(e), it is not factually similar and does not address the issue of a fundamental error in the computed ownership interest percentages.
Also to be considered are the public policy implications of possibly preventing a board from correcting obvious, fundamental errors in condominium instruments, by requiring the unanimous agreement of owners. I believe that summary judgment in this case was improper.
In light of the foregoing, I would reverse the judgment and remand this cause for further proceedings consistent with this view.