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THIRD DIVISION
August 29, 2001

Three into two don't go -- not when the three are the onlyunit owners in a condominium apartment building and the two areoutside parking spaces that are part of the development but arenot mentioned in the Declaration of Condominium Ownership.

The inevitable happened. One owner, a latecomer to thebuilding, sued the other two owners who had staked claims to thetwo spaces by voting to amend the Declaration. Those two ownerscounterclaimed, seeking a reformation of the Declaration thatwould establish their rights to the spaces.

The plaintiff emerged victorious at the pleading stage inthe trial court. He won a judgment on the pleadings, thuseliminating the amendment, and he won a motion to dismiss thedefendants' counterclaim for reformation. We affirm the trialcourt's order granting judgment on the pleadings, but we reversethe order granting plaintiff's motion to dismiss the counterclaimfor reformation and we remand for further proceedings.

FACTS

We take relevant facts from the pleadings.

514 West Grant Place Condominium Association, Inc. (the"Association"), is an Illinois not-for-profit corporationorganized under the Illinois Condominium Property Act (the "Act")(765 ILCS 605/1 et seq. (West 1998)). The Association's purposeis to administer and operate the property known as Units 101,102, and 103 of 514-516 West Grant Place, Chicago, Illinois (the"Property"), as defined by the Declaration of CondominiumOwnership and of Easements, Covenants, Restrictions and Bylaws(the "Declaration").

In 1984, Corrales & Associates Limited Partnership (the"Developer") converted 514-516 West Grant Place, Chicago,Illinois, to a three-unit condominium. At about the same time,514 West Grant Place Condominium Association was formed.

In 1984, Lisa Ross purchased Unit 101 from the Developer. She lived in Unit 101 until 1995. In 1995, defendant BruceGershenzon (Gershenzon) bought Unit 101 from Lisa Ross.

Defendant William Wylie III (Wylie) purchased Unit 102 in1984 from the Developer. Wylie has been Unit 102's onlyowner/occupant.

William Mallers, Sr., a principal of the Developer,purchased Unit 103 and lived there from 1984 to about 1993. Hisson, William Mallers, Jr., bought and/or lived in Unit 103 from1993 to about 1995. In 1995, Jeff Drulac bought Unit 103 andlived there until 1998. In 1998, plaintiff Alan Schaffner(Schaffner) bought Unit 103 from Jeff Drulac.⁽¹⁾

Wylie and Gershenzon have been Board Members of theAssociation since they became unit owners. Schaffner has notbeen a Board Member.

The Property has five parking spaces. Three are enclosedand two are outside. This case centers on the two outdoorparking spaces, which are on the east side of the Property. The Declaration defines the condominium and ownership of thecondominium in terms of a Plat which is attached to and is a partof the Declaration. In their amended counterclaim, defendantsallege the Developer attached the wrong maps/surveys to theDeclaration as the Plat. The Plat did not accurately reflect thepremises -- it did not depict any outdoor parking spaces. Infact, nowhere in the pre-amendment Declaration was there anymention of the outdoor parking spaces.

The Plat shows a wooden deck in the area where the outdoorparking spaces are. Although a wooden deck has been in existenceon the Property since 1984, it is in a different shape andlocated in a different area than shown on the Plat.

Defendants contend the Plat attached to the Declaration isincorrect in two ways: (1) it does not correctly portray theshape or location of the wooden deck, and (2) it does not portraythe outdoor parking spaces.

They allege the Developer and original purchasers of Unit101 and 102 agreed the outdoor parking spaces would be limitedcommon elements. In other words, only the owners of Unit 101 andUnit 102 would have the exclusive right to use the outdoorparking spaces -- a parking space apiece. Defendants went on toallege "the Developer and the original purchaser of Unit 103agreed, ***, that Unit 103 would enjoy no use of the Property'soutdoor parking spaces." (Emphasis in original).

Defendants also allege the Developer and each of thesuccessive owners of Unit 101, 102, and 103, except for JeffDraluc, "have at all times believed and understood that theDeclaration granted exclusive use of the outdoor parking spacesto Units 101 and 102."

With respect to Jeff Draluc, defendants allege "in the lasttwo months of Mr. Draluc's ownership of Unit 103, he became awareof the drafting errors in the Declaration." Defendants say thatalthough Draluc acted consistently with the "agreement andunderstanding" that the outdoor parking spaces had been grantedto Units 101 and 102 for their exclusive use, he wouldoccasionally try to park in one of the outdoor parking spaces.

Defendants also allege Draluc told Schaffner that althoughUnit 103 did not have a right to use the outdoor parking spaces,he recently discovered drafting errors in the Declaration. Defendants contend Schaffner purchased Unit 103 from Draluc with"full knowledge that there were mistakes in the Declaration." And, "With such knowledge of the mistakes, since closing on hispurchase of Unit 103, Mr. Schaffner has repeatedly used theProperty's outdoor parking spaces and threatened to continuedoing so absent intervention."

Schaffner's actions prompted the Association to convene ameeting. On or about July 8, 1999, the defendants, in their roleas Board Members of the Association, served themselves andSchaffner with notice of special meeting to amend the Declaration"to correct an omission and error relating to the use of the twooutdoor parking spaces." The special meeting was held on July15, 1999.

At the meeting, defendants voted to amend the Declaration toprovide that the two outdoor parking spaces would be reserved fortheir exclusive use as "limited common elements of Unit 101 andUnit 102". Naturally, Schaffner voted against the proposedamendment, but to no avail.

On December 20, 1999, defendants amended the Declaration(the "Amendment"). On January 3, 2000, defendants recorded theAmendment.

On February 23, 2000, Schaffner filed his two-countcomplaint seeking a declaratory judgment that the amendment tothe Declaration was invalid and damages for breach of fiduciaryduties (stayed pending this appeal).

In count I of his complaint, Schaffner alleges executing andrecording the Amendment (1) "diminished the Common Elements ofthe Property thereby reducing the value of Schaffner's ownershipinterest in the Common Elements of the Property", (2)"unreasonably interfere with Schaffner's use of the CommonElements of the Property", and (3) "violate the provisions of the[Act]."

On March 27, 2000, defendants filed their answer, withaffirmative defenses that included waiver and estoppel. Theyalso filed a verified counterclaim seeking: reformation of theDeclaration and related condominium documents, a declaratoryjudgment the amendment to the Declaration was valid, andinjunctive relief.

Schaffner moved for judgment on the pleadings on his claimfor declaratory judgment. Schaffner also filed a section 2-615motion to dismiss defendants' affirmative defenses and verifiedcounterclaim. See 735 ILCS 5/2-615 (West 1998).

On June 14, 2000, the trial court granted both motions. Thecourt ordered "The Amendment recorded on 1-3-2000 *** is herebydeclared invalid and of no force and effect." The court alloweddefendants leave to amend.

On July 12, 2000, defendants filed their amended affirmativedefenses and amended verified counterclaim for reformation,declaratory judgment, and injunctive relief. The trial courtdismissed defendants' pleadings on September 13, 2000.

Schaffner's damages claims alleging breach of fiduciary duty(count II) are pending. As far as we can tell, the trial court'sjudgment on the pleadings did not specifically declare a winnerin the parking space dispute.

On January 22, 2000, the court ordered "there is no justreason to delay enforcement or appeal of the June 14, 2000 Orderand the September 13, 2000 Order pursuant to Supreme Court Rule304(a)". See 155 Ill. 2d R. 304(a).

This appeal followed.

DECISION

JUDGMENT ON THE PLEADINGS

Defendants contend the trial court's grant of Schaffner'smotion for judgment on the pleadings was improper.

In deciding a section 2-615 motion for judgment on thepleadings (735 ILCS 5/2-615(e) (West 1998)), the trial court mustexamine all pleadings on file, taking as true the well-pleadedfacts set forth in the opposing party's pleadings and thereasonable inferences to be drawn therefrom, and determinewhether a material factual dispute exists or whether thecontroversy can be resolved strictly as a matter of law. XLPCorporation v. The County of Lake, 317 Ill. App. 3d 881, 884-85,743 N.E.2d 162 (2000).

We review de novo a trial court's grant of a motion forjudgment on the pleadings. People ex rel. Shapo v. AgoraSyndicate, Inc., No. 1--00-4119, slip op. at 9 (June 22, 2001). We must determine whether any genuine issue of material factexists and, if not, whether the prevailing party was entitled tojudgment as a matter of law. People ex rel. Shapo, No. 1--00-4119, slip op. at 9.

Here, the trial court declared, as a matter of law, theAmendment executed and recorded by defendants invalid and of noforce and effect. We agree.

The Declaration defines Common Elements as "All portions ofthe Property excluding the Units, unless otherwise specified." Common Elements include "All halls, corridors and pavements" and"All other parts of the property necessary or convenient to itsexistence, maintenance, and safety, or which are normally incommon use."

A Limited Common Element is defined as "A portion of theCommon Elements so designated and reserved in the Declaration,whose use has been restricted for the use of one Unit Owner,including but not limited to the Building Limited CommonElements, as described in Article Three, Section Two of thisDeclaration."

Article Three, Section Two of the Declaration states LimitedCommon Elements include "Building Limited Common Elements" and"Parking Stalls and Garage Doors". Building Limited CommonElements are portions "of the Common Elements serving exclusivelya single building as an inseparable appurtenance thereto, ***." Parking stalls "means that area provided for the enclosed parkingof automobiles as shown or referenced to on the Plat."

Both Schaffner and defendants agree the Declaration and thePlat attached to it do not describe or refer to the two outdoorparking spaces. That is, they are not "otherwise specified," afact which leads to the logical conclusion that the outdoorparking spaces should be considered Common Elements under theoriginal Declaration.

Article Three, Section Three (entitled "Ownership of CommonElements") states, in part:

" Each Owner of a Unit shall own in fee absolute aproportionate, undivided interest in the aforesaid CommonElements noted hereunder equal to the proportion that thevalue of such Unit bears to the total value of all Units, asa tenant in common with all other Unit Owners of theProperty ***."

To amend the Declaration, Article Four, Section Fourteen ofthe Declaration (entitled "Amendment of Declaration") provides,in part:

" This Declaration may be amended or supplemented by theaffirmative vote of those Unit Owners entitled to exerciseone hundred per cent (100%) of the total voting power of theAssociation, cast in person or by proxy at a meeting dulycalled and held ***."

On January 3, 2000, defendants recorded the Amendment, whichstates in pertinent part:

" WHEREAS, the Association desires to amend theDeclaration pursuant to Section 27 of the Act to (i) correctthe omissions and errors relating to the two (2) outdoorstalls, (ii) correct the Plat in order to accurately reflectthe two (2) outdoor stalls, and (iii) confirm the assignmentby the Developer of the two outdoor stalls as Limited CommonElements for the benefit of Unit 101 and Unit 102,respectively."

The defendants contend they needed only a two-thirds vote tosecure ownership of the outdoor parking spaces, not the 100%required by the Declaration. They say section 27(b)(2) of theAct (765 ILCS 605/27(b)(2) (West 1998)) dictates the appropriateprocedure for amending the Declaration because "the CondominiumDeclaration does not contain a provision for correcting omissionsand errors, but rather contains a general provision for amendingthe Condominium Declaration." That section states, in pertinentpart:

(2) If through a scrivener's error, *** all the commonexpenses or all of the common elements in the condominiumhave not been distributed in the declaration, so that thesum total of the shares of common elements which have beendistributed or the sum total of the shares of the commonexpenses fail to equal 100%, *** , the error may becorrected by operation of law by filing an amendment to thedeclaration approved by vote of two-thirds of the members ofthe Board of Managers or a majority vote of the unit ownersat a meeting called for this purpose which proportionatelyadjusts all percentage interests so that the total is equalto 100% unless the condominium instruments specificallyprovide for a different procedure or different percentagevote by the owners of the units and the owners of mortgagesthereon affected by modification being made in the undividedinterest in the common elements, the number of votes in theunit owners association or the liability for common expensesappertaining to the unit. (Emphasis added.) 765 ILCS605/27(b)(2) (West 1998).

According to defendants, "through a scrivener's error," thePlat mistakenly depicted a wooden deck (which currently exists ina different shape and different area than depicted in the Plat)in the area where the outdoor parking spaces are located. Defendants contend this "error" led to the "omission" ofdescribing and delineating the outdoor parking spaces in theDeclaration as Limited Common Elements for the exclusive use ofdefendants. "The omission in the Declaration is an obviousmistake, which must be corrected to reflect the way the propertytruly is configured", say defendants.

There can be no reduced majority vote under section 27(b)(2)without a finding of "scrivener's error," an archaic phrase thatsomehow has survived time and legislative amendment. If thisomission of outdoor parking spaces was not a scrivener's errorthere is no need to explore the question of whether thedefendants' vote "materially or adversely affected" Schaffner'sproperty rights, a fact that would trump the two-thirds voteauthority of section 27(b)(2). See 765 ILCS 605/27(b)(4) (West1998).

We cannot give the statute a construction that would renderthe phrase superfluous or meaningless; we must give it somereasonable meaning. Huskey v. Board of Managers of Condos ofEdelweiss, 297 Ill. App. 3d 292, 295, 696 N.E.2d 753 (1998).

No Illinois case defines the term, but several have appliedit. In each instance, the correction was mechanical or technicalin nature, not decisional or judgmental. See People v.Wyzgowski, No. 3-00-0766, slip op. at 3-5, (July 13, 2001) (Courtfound "scrivener's error" in an officer's sworn report "merely aformal defect" where the report incorrectly stated the date ofarrest as July 7, 2000, as opposed to July 6, 2000); People v.Mast, 305 Ill. App. 3d 727, 734, 713 N.E.2d 242 (1999) (Courtrejected State's argument that defense counsel's failure tomention his review of guilty plea proceedings in his Rule 604(d)certificate constituted "scrivener's error" stating, "referringto the omission in question as a scrivener's error is a 'grossmischaracterization' ***, the defect in the certificate did notconstitute a 'typographical error or careless omission of adispensable term.' "); Krilich v. Plencer, 305 Ill. App. 3d 709,712-13, 713 N.E.2d 213 (1999) ( "Nunc pro tunc orders may beentered to correct clerical errors [or inadvertent scrivener'serror], but such an order cannot be used to correct judicialerrors. [Citation.] 'The distinction between a clerical error anda judicial one does not depend upon the source of the error, butrather, upon whether it was the deliberate result of judicialreasoning and determination.' [Citation.]"); In re Application ofthe County Collector, 295 Ill. App. 3d 703, 709-10, 692 N.E.2d1211 (1998) (Court found that omission of a prefix to acertificate number on a statutory notice form was not "a meretypographical or scrivener's error" where the evidence suggestedthe omission of the certificate number prefixes on notice formswere by design and believed to be irrelevant.); Blakely v.Federal Kemper Life Assurance Co., 267 Ill. App. 3d 100, 106-07,640 N.E.2d 961 (1994) (After conceding the difficulty indistinguishing clerical errors from other errors, the courtlooked to a seventh circuit case, S.T.S. Transport Service, Inc.v. Volvo White Truck Corp., 766 F.2d 1089 (7th Cir. 1985), whichstated, " '[a] merely mathematical or clerical error occurs whensome term is either one-tenth or ten times as large as it shouldbe; when a term is added in the wrong column; when it is addedrather than subtracted; when it is overlooked.' ([Citation.])" By that definition, the court held "a missing decimal point is ascrivener's error ([citation]). So, too, was inserting a monthlypayment amount in the place where a factor was to be inserted,*** ([citation]). However, using a correct set of numbers for anincorrect year to compute [insurance] premiums when one should beusing a different set of numbers, i.e., insurance rates for thecorrect year, does not in our opinion constitute a scrivener's orclerical error. The error was not evidenced in the writing andcannot be proven now without parol evidence. Furthermore, it wascontinuous, ongoing, and repeated ***."); People v. Reznick, 141Ill. App. 3d 593, 597, 491 N.E.2d 444 (1986) (A trial court'swritten order stating defendant's sentence was to be concurrentwas not "a mere scrivener's error" where the trial judge did notstate at the sentencing hearing that the sentences were to beserved consecutively to the previously imposed sentence.);Dauderman v. Dauderman, 130 Ill. App. 2d 807, 808-09, 263 N.E.2d708 (1970) (Trial court amended the parties' divorce decree toread "$400.00 per month" rather than "$400.00." Appellate courtheld the failure to include the words "per month" was clearly an"inadvertent clerical error" or "scrivener's error" because thelump sum award did not match the decree absent the language "permonth."); People ex rel. Cameron v. New, 214 Ill. 287, 290-91(1905) (Although a legal description in a petition for theorganization of a village -- where the property must becontiguous -- had been defective in that it referred to "thenorth three-fourths" instead of the "south three-fourths," a platattached to the petition was used for the purpose of correctingthe "scrivener's error" and giving effect to the intention of thepetition.); Garrick v. Chamberlain, 97 Ill. 620, 638 (1881) (Anotice was considered valid when it described property as "lot 5,lot 23, in Carpenter's addition" instead of "lot 5, in Block 23,in Carpenter's addition" because the mistake was a typographicalor a scrivener's error readily apparent on the face of anotice.).

Lacking a clear definition of "scrivener's error," we lookelsewhere.

A "scrivener" is "A writer; esp., a professional drafter ofcontracts or other documents." Black's Law Dictionary 1349 (7thed. 1999). A "scrivener's error" is defined as a "clericalerror":

"clerical error. An error resulting from a minor mistake orinadvertence, esp. in writing or copying something on therecord, and not from judicial reasoning or determination.

Among the boundless examples of clerical errors areomitting an appendix from a document; typing an incorrectnumber; mistranscribing a word; and failing to log a call."(Emphasis added.) Black's Law Dictionary 563 (7th ed.1999).

Whatever the reason for omitting the outdoor parking spacesfrom the Declaration, we cannot see how it was caused by ascrivener's error, as that term is used in section 27(b)(2). Somebody made a decision to do it. It was a deliberate judgment. There was nothing technical about it. Omission of the only twooutdoor parking spaces in the Development cannot be considered a"minor mistake or inadvertence."

We find support for our conclusion in the Historical &Practice notes to section 27(b):

"subsection 27(b) *** provides a summary procedure tocorrect omissions or errors in condominium instruments. Omissions or errors include provisions which conflict withcurrent case and statutory law, typographical or similartypes of mistakes, and provisions in a declaration or by-laws which mutually conflict with each other." 765 ILCSAnn. 605/27(b), Historical & Practice Notes, at 174 (Smith-Hurd 1993).

That leaves us with the Grant Place Declaration. See Carneyv. Donley et al., 261 Ill. App. 3d 1002, 1008, 633 N.E.2d 1015(1994).

It is true there is a clear intent that the Board Membershave broad authority to manage and administer the property,including the Common Elements and Limited Common Elements. See765 ILCS 605/18-4 (West 1998).

But the amendment voted here diminishes the common elementsby granting the defendants exclusive use of some part of thecommon elements, i.e., the two outdoor parking spaces. For this,a unanimous vote of the unit owners is required by Article Four,Section Fourteen of the Declaration. See Carney, 261 Ill. App.3d at 1008-10 ("plaintiff's ownership interests were diminishedbecause *** plaintiff was precluded from using a portion of thecommon elements to which he previously had access."); Stuewe v.Lauletta, 93 Ill. App. 3d 1029, 1031, 418 N.E.2d 138 (1981) ("thespecific language of the Declaration requires approval of allowners before the common elements could be diminished.");Schaumburg State Bank v. Bank of Wheaton, 197 Ill. App. 3d 713,721, 555 N.E.2d 48 (1990) ("an individual unit owner's undividedinterest would only be diminished if the use or easement wasexclusive and, as a result, the unit owner was precluded fromusing a portion of the common elements to which he previously hadaccess."); Sawko v. Dominion Plaza One Condominium Ass'n, 218Ill. App. 3d 521, 529-30, 578 N.E.2d 621 (1991) (the court reliedon Stuewe and Schaumburg State Bank to conclude the exclusive useportions of common elements which were formerly designated asnonexclusive use portions diminished plaintiff's interests in thecommon elements).

Defendants' self-grant of the two outdoor parking spacesdiminished Schaffner's ownership interests in the affected commonelements. Contrary to Article Four, Section Fourteen of theDeclaration, Schaffner's ownership interests were changed withoutthe required unanimous approval of all unit owners.

We agree with the trial judge that the amendment to theDeclaration executed and recorded by defendants is invalid and ofno force and effect.

We also find the trial court properly granted Schaffner'ssection 2-615 motion to dismiss that part of defendants' verifiedamended counterclaim seeking a declaratory judgment that theiramendment to the Declaration was valid (count II).

MOTION TO DISMISS

A section 2-615 motion attacks the sufficiency of thecounterclaim and raises the question of whether it states a causeof action upon which relief can be granted. See Schal Bovis,Inc.v. Casualty Ins. Co., 314 Ill. App. 3d 562, 571, 732 N.E.2d 1082(1999). 735 ILCS 5/2-615 (West 1998).

We review de novo the trial court's dismissal of count I ofdefendants' counterclaim and their affirmative defenses,accepting all well-pled facts in the counterclaim as true anddraw all reasonable inferences from those facts in favor of thecounterplaintiff. See Schal Bovis,Inc., 314 Ill. App. 3d at 571.

REFORMATION

Defendants contend the trial court erred in dismissing theircounterclaim for reformation of the condominium declaration toinclude the two outdoor parking spaces. In response, Schaffnersays, "There is certainly no legal basis to reform the deeds andDeclaration at this late date" where the defendants failed tosufficiently plead factual allegations necessary for a claim ofreformation based on mutual mistake. We disagree.

The action for reformation is to change the writteninstrument by inserting the omitted provision so that theinstrument conforms to the original agreement between theparties. Briarcliffe Lakeside Townhouse Owners Ass'n v. City ofWheaton, 170 Ill. App. 3d 244, 251, 524 N.E.2d 230 (1988). "Whatis sought to be reformed is not the understanding between theparties, but rather the written instrument which inaccuratelyreflects it." (Emphasis in original.) Briarcliffe, 170 Ill.App. 3d at 251.

At this stage, we are concerned only with the sufficiency ofthe factual allegations, not matters of proof. To state a causeof action for reformation, the complaining party must allege (1)the existence and substance of an agreement between the partiesand the identity of the parties to that agreement; (2) that theparties agreed to reduce their agreement to writing; (3) thesubstance of the written agreement; (4) that a variance existsbetween the parties' original agreement and the writing; and (5)the basis for reformation (e.g., mutual mistake). Briarcliffe,170 Ill. App. 3d at 252 (citations therein).

Defendants do not have to allege in express terms thewritten instrument, i.e., the Declaration, was erroneouslyexecuted through mutual mistake, as long as their pleading setsout specific facts from which "such a conclusion is inevitable orfairly deducible." See Briarcliffe, 170 Ill. App. 3d at 252,quoting Darst v. Lang, 367 Ill. 119, 125, 10 N.E.2d 659 (1937). Here, we find the defendants' counterclaim sufficient tostate a cause of action for reformation. See Ballard v. Granby,90 Ill. App. 3d 13, 15-16, 412 N.E.2d 1067 (1980).

In reviewing count I of defendants' amended verifiedcounterclaim, we find allegations (1) the Developer and originalpurchasers of Unit 101, 102, and 103 agreed the owners of Unit101 and 102 would have the exclusive right to use the two outdoorparking spaces and the owner of Unit 103 would enjoy no use ofthe outdoor parking spaces -- the parties to the agreement areidentifiable; (2) the Developer and the Unit Owners agreed toreduce their agreement to writing; (3) defendants set forth theterms of the Declaration and said the Declaration did not reflectthe true intention of the parties; (4) a variance existed betweenthe Declaration and the original agreement between the Developerand the Unit owners, as evidenced by the omission of the outdoorparking spaces in the Declaration; and (5) the wrong maps/surveyswere attached to the Declaration by mistake.

Whether the evidence of mutual mistake is sufficient isdecided at trial, not at the motion to dismiss stage. SeeBallard, 90 Ill. App. 3d at 16. Defendants at trial must prove,by clear and convincing evidence, the existence of the mutualmistake. LaSalle National Bank v. 850 De Witt CondominiumAssociation, 257 Ill. App. 3d 540, 543, 629 N.E.2d 704 (1994). Defendants' allegations in count I of their verified amendedcounterclaim are sufficient to state a cause of action forreformation.

PAROL EVIDENCE

In support of the trial court's order dismissing defendants'counterclaim, Schaffner contends the parol evidence rule wouldbar the evidence showing a mistake, since the Declaration isclear and unambiguous on its face. That argument ignores theestablished rule: "Where mutual mistake or fraud is alleged,parol evidence is admissible to show the true intent andunderstanding of the parties." Ballard, 90 Ill. App. 3d at 16,citing Darst v. Lang, 367 Ill. 119, 10 N.E.2d 659 (1932).

The parol evidence rule is no bar to the admission ofevidence on the questions of mutual mistake and it is no basisfor dismissal of defendants' counterclaim for reformation. SeeBrady et al. v. Prairie Material Sales, Inc., 190 Ill. App. 3d571, 578, 546 N.E.2d 802 (1989) (In reformation action, "parolevidence is *** admitted *** to prove by clear and convincingevidence the actual agreement in light of the allegation that thewritten instrument, in spite of the apparent agreement expressedby its language, fails to express the actual agreement enteredinto between the parties.")

BONA FIDE PURCHASER

In support of the trial court's order dismissing count I ofthe defendants' counterclaim, Schaffner contends he was a bonafide purchaser for value and without notice of defendants' claimswhen he became an owner of Unit 103.

"A bona fide purchaser of an interest in property takes thatinterest free and clear from all claims except those of which hehas notice." LaSalle National Bank v. 850 De Witt CondominiumAss'n, 211 Ill. App. 3d 712, 718, 570 N.E.2d 606 (1991).

At issue in determining Schaffner's status as a bona fidepurchaser is whether he had notice of the defendants' claims tothe two outdoor parking spaces. "Such notice may be actual orconstructive and contemplates the existence of circumstances orfacts either known to a prospective purchaser or of which he ischargeable with knowledge which imposes upon such purchaser theduty of inquiry." LaSalle National Bank, 211 Ill. App. 3d at719, quoting Burnex Oil Company v. Floyd, 106 Ill. App. 2d 16,21, 245 N.E.2d 539 (1969).

Understandably, both parties have taken opposite sides ofthis issue and now argue their positions as a matter of law. Weagree with neither. With respect to the sale of Unit 103 fromJeff Draluc to Schaffner, we find the bona fide purchaser issueis a fact question and is no basis for dismissal of defendants'counterclaim for reformation. See LaSalle National Bank, 211Ill. App. 3d at 719.

We hold the trial court incorrectly dismissed count I ofdefendants' verified amended counterclaim, the reformation count. CONCLUSION

The orders granting plaintiff's motion for judgment on thepleadings and dismissal of count II of defendants' counterclaimare affirmed, the granting of plaintiff's motion to dismiss countI of defendants' verified amended counterclaim is reversed, andthe cause is remanded for further proceedings.

Affirmed in part, reversed in part and remanded.

CERDA, and BURKE, JJ., concur.

1. We note Schaffner says he has owned Unit 103 since 1997.