Common expenses and common surpluses. 703.16(1)(1)
Disposition of common surpluses.
All common surpluses of the association shall be credited to the unit owners' assessments for common expenses in proportion to their percentage interests in the common elements or as otherwise provided in the declaration or shall be used for any other purpose as the association decides.
(2) Funds for payment of common expenses obtained by assessments.
Funds for the payment of common expenses and for the creation of reserves for the payment of future common expenses shall be obtained by assessments against the unit owners in proportion to their percentage interests in the common elements or as otherwise provided in the declaration.
(3) Liability for assessments.
A unit owner shall be liable for all assessments, or instalments thereof, coming due while owning a unit. In a voluntary grant, the grantee shall be jointly and severally liable with the grantor for all unpaid assessments against the grantor for his or her share of the common expenses up to the time of the voluntary grant for which a statement of condominium lien is recorded, without prejudice to the rights of the grantee to recover from the grantor the amounts paid by the grantee for such assessments. Liability for assessments may not be avoided by waiver of the use or enjoyment of any common element or by abandonment of the unit for which the assessments are made.
Assessments constitute lien. All assessments, until paid, together with interest on them and actual costs of collection, constitute a lien on the units on which they are assessed, if a statement of lien is filed within 2 years after the date the assessment becomes due. The lien is effective against a unit at the time the assessment became due regardless of when within the 2-year period it is filed. A statement of condominium lien is filed in the land records of the clerk of circuit court of the county where the unit is located, stating the description of the unit, the name of the record owner, the amount due and the period for which the assessment was due. The clerk of circuit court shall index the statement of condominium lien under the name of the record owner in the judgment and lien docket. The statement of condominium lien shall be signed and verified by an officer or agent of the association as specified in the bylaws and then may be filed. On full payment of the assessment for which the lien is claimed, the unit owner shall be entitled to a satisfaction of the lien that may be filed with the clerk of circuit court.
Any grantee of a unit is entitled to a statement from the association or the executive board, setting forth the amount of unpaid assessments against the grantor and the grantee is not liable for, nor shall the unit conveyed be subject to a lien which is not filed under sub. (4)
for, any unpaid assessment against the grantor in excess of the amount set forth in the statement. If an association or a board of directors does not provide such a statement within 10 business days after the grantee's request, they are barred from claiming under any lien which is not filed under sub. (4)
prior to the request for the statement against the grantee.
(6) Priority of lien.
All sums assessed by an association but unpaid for the share of the common expenses chargeable to any unit constitutes a lien on the unit and on the undivided interest in the common elements appurtenant thereto prior to all other liens except:
All sums unpaid on a first mortgage recorded prior to the making of the assessment.
Mechanic's liens filed prior to the making of the assessment.
All sums unpaid on any mortgage loan made under s. 45.80
, 1989 stats.
(7) Interest on unpaid assessment.
Any assessment, or instalment thereof, not paid when due shall bear interest, at the option of the association, from the date when due until paid at a rate not exceeding the highest rate permitted by law as stated in the bylaws.
(8) Enforcement of lien.
A lien may be enforced and foreclosed by an association or any other person specified in the bylaws, in the same manner, and subject to the same requirements, as a foreclosure of mortgages on real property in this state. An association may recover costs and actual attorney fees. An association may, unless prohibited by the declaration, bid on the unit at foreclosure sale and acquire, hold, lease, mortgage and convey the unit. Suit to recover a money judgment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing the same. Suit for any deficiency following foreclosure may be maintained in the same proceeding. No action may be brought to foreclose the lien unless brought within 3 years following the recording of the statement of condominium lien. No action may be brought to foreclose the lien except after 10 days' prior written notice to the unit owner given by registered mail, return receipt requested, to the address of the unit owner shown on the books of the association.
(9) Form of statement of condominium lien.
A statement of condominium lien is sufficient for the purposes of this chapter if it contains the following information and is substantially in the following form:
Statement of Condominium Lien
This is to certify that .................... owner(s) of unit No. ..... in .................... Condominium (is) (are) indebted to the association in the amount of $.......... as of .........., .... (year) for (his) (her) (its) (their) proportionate share of common expenses of the Condominium for the period from (date) to (date), plus interest thereon at the rate of ....%, costs of collection, and actual attorney fees.
Officer's title (or agent)
I hereby affirm under penalties of perjury that the information contained in the foregoing Statement of Condominium Lien is true and correct to the best of my knowledge, information, and belief.
Officer (or agent)
Condominium land contract recorded before making of assessment lien has priority as first mortgage under (6)(b). Towne Realty, Inc. v. Edwards, 156 Wis. 2d 344
, 456 N.W.2d 651
(Ct. App. 1990).
The definition of "unit" under sub. (15) encompasses a property on which there is no constructed unit. Aluminium Industries v. Camelot Trails, 194 Wis. 2d 575
, 535 N.W.2d 74
(Ct. App. 1995).
In a foreclosure action under sub. (8) based on a failure to pay condominium fees, s. 846.10 (1) could not be applied sensibly to require a statement of instalments to become due because monthly assessments were in varying amounts. The 12-month redemption period under s. 846.10 (2) is applicable to such foreclosures. Geneva National Community Association, Inc. v. Friedman, 228 Wis. 2d 572
, 598 N.W.2d 600
(Ct. App. 1999).
An association shall obtain insurance for the property against loss or damage by fire and such other hazards for not less than full replacement value of the property insured and a liability policy covering all claims commonly insured against. Insurance coverage shall be written on the property in the name of the association as trustee for each of the unit owners in the percentages established in the declaration. Premiums shall be common expenses. Provisions for such insurance shall be without prejudice to the right of each unit owner to insure his or her own unit for personal benefit.
Insurance proceeds shall first be disbursed by the trustees for the repair or restoration of the damaged common elements, and the unit owners and mortgagees shall not be entitled to receive payment of any portion of the insurance proceeds unless the association has determined not to rebuild, or the court has ordered partition of the condominium property, or there is a surplus of insurance proceeds after the common elements have been completely repaired or restored.
History: 1977 c. 407
; 1985 a. 332
Repair or reconstruction. 703.18(1)
A declaration shall provide for the repair or reconstruction of the common elements in the event of damage to all or part of the common elements of the condominium.
Unless otherwise provided in the declaration, in the event of damage to or destruction of common elements of a condominium, the association shall promptly undertake to repair or reconstruct it to a condition compatible with the remainder of the condominium. All cost of the repair or reconstruction in excess of available insurance proceeds shall be a common expense.
However, if a condominium is damaged to an extent more than the available insurance proceeds, the condominium shall be subject to an action for partition upon obtaining the written consent of the unit owners having 75% or more of the votes. In the case of partition, the net proceeds of sale together with any net proceeds of insurance shall be considered as one fund and shall be divided among all unit owners in proportion to their percentage interests in the common elements, and shall be distributed in accordance with the priority of interests in each unit.
History: 1977 c. 407
In this section, "taking under the power of eminent domain" includes any sale in settlement of any pending or threatened condemnation proceeding.
(2) Allocation of award; provisions in declaration or bylaws.
A declaration or bylaws may provide for an allocation of any award for a taking under the power of eminent domain of all or part of the condominium. A declaration or bylaws also may provide for:
Reapportionment or other change of the percentage interests appurtenant to each unit remaining after any taking; and
Rebuilding, relocation or restoration of any improvements so taken in whole or in part.
(3) Allocation of award; in absence of provisions in declaration or bylaws.
Unless otherwise provided for in a declaration or bylaws, any damages for a taking of all or part of a condominium shall be awarded as follows:
Every unit owner is entitled to the entire award for the taking of all or part of their respective unit and for consequential damages to their unit.
Any award for the taking of limited common elements shall be allocated to the unit owners of the units to which the use of those limited common elements is restricted in proportion to their respective percentage interests in the common elements.
In the event no reconstruction is undertaken, any award for the taking of common elements shall be allocated to all unit owners in proportion to their respective percentage interests in the common elements.
(4) Reconstruction following taking.
Following the taking of all or a part of the common elements, an association shall promptly undertake to restore the improvements of the common elements to an architectural whole compatible with the existing structure. Any costs of such restoration in excess of the condemnation award shall be a common expense. However, if the taking under the power of eminent domain is to the extent where the remaining condominium portion has been diminished to the extent that reconstruction or restoration is not practical, a condominium shall be subject to an action for partition upon obtaining the written consent of the unit owners having 75% or more of the vote. In the case of partition, the net proceeds of sale, together with any net proceeds of the award for taking, shall be considered as one fund and shall be divided among all unit owners in proportion to their percentage interest in the common elements and shall be distributed in accordance with the priority of interests in each unit.
(5) Adjustment of percentage interests following taking; effect of taking on votes appurtenant to unit.
Following the taking of all or a part of any unit, the percentage interests appurtenant to the unit shall be adjusted in proportion as provided in the condominium instruments or bylaws. The association promptly shall prepare and record an amendment to the declaration reflecting the new percentage interests appurtenant to the unit. Subject to sub. (7)
, following the taking of part of a unit, the votes appurtenant to that unit shall be appurtenant to the remainder of that unit, and following the taking of all of a unit, the right to vote appurtenant to the unit shall terminate.
(6) Priority in distribution of damages for each unit.
All damages for each unit shall be distributed in accordance with the priority of interests at law or in equity in each respective unit.
(7) Taking not to include percentage interests or votes.
A taking of all or part of a unit may not include any of the percentage interests or votes appurtenant to the unit.
(8) Preservation of the right of appeal.
The owner of each unit taken shall have the individual right of appeal of the necessity of taking and of the condemnation award made for the taking. An association shall have the right of appeal of the necessity of taking of the common elements and the right of appeal of the condemnation award made for the taking of the common elements. An appeal by an association shall be binding upon the individual unit owners for the necessity of taking or the condemnation award made for the taking of the common elements. The unit owners having an interest in the ownership of limited common elements may individually or as a group appeal the necessity of taking or the condemnation award made for the taking of the limited common elements.
History: 1977 c. 407
Books of receipts and expenditures. 703.20(1)(1)
Record keeping; availability for examination.
An association shall keep detailed, accurate records using standard bookkeeping procedures of the receipts and expenditures affecting the common elements, specifying and itemizing the maintenance and repair expenses of the common elements and any other expenses incurred. The records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours.
(2) Disclosure information.
Within 10 days after a request by a seller other than the declarant, an association shall furnish the information necessary for the seller to comply with s. 703.33
. The seller shall pay the association the actual costs of furnishing the information.
History: 1977 c. 407
; 1985 a. 188
Separate taxation. 703.21(1)(1)
Every unit and its percentage of undivided interest in the common elements shall be deemed to be a parcel and shall be subject to separate assessments and taxation by each assessing unit and special district for all types of taxes authorized by law including, but not limited to, special levies based on the value of property and special assessments. Neither the building, the property nor any of the common elements shall be deemed to be a parcel separate from the unit.
The rights, duties and obligations of unit owners under this chapter shall inure to and be binding upon grantees under tax deeds and persons acquiring title by foreclosure of tax liens and their successors in interest.
History: 1977 c. 407
; 1979 c. 110
Mechanics' and materialmen's liens. 703.22(1)
Subsequent to recording a declaration under this chapter and while the property remains subject to this chapter, any and all liens will exist only against individual units and the percentage of undivided interest in the common elements appurtenant to such unit, in the same manner and under the same conditions in every respect as liens or encumbrances may arise or be created upon or against any other separate parcel of real property subject to individual ownership.
Any mechanics' lien or materialmen's lien arising as a result of repairs to or improvements of a unit by a unit owner shall be a lien only against the unit.
Any mechanics' or materialmen's lien arising as a result of repairs to or improvements of the common elements, if authorized in writing by the association, shall be paid by the association as a common expense and until paid shall be a lien against each unit in proportion to its percentage interest in the common elements. On payment of the proportionate amount by any unit owner to the lienor or on the filing of a written undertaking in the manner specified by s. 779.08
, the unit owner shall be entitled to a release of his or her unit from the lien and the association shall not be entitled to assess his or her unit for payment of the remaining amount due for the repairs or improvements.
History: 1977 c. 407
; 1979 c. 32
s. 92 (9)
Because the statute is silent as to the amount each unit should pay when a blanket lien is filed, application of the equitable principal that the lien should be applied proportionately against each unit was appropriate. Torke/Wirth/Pujara v. Lakeshore Towers, 192 Wis. 2d 481
, 531 N.W.2d 419
(Ct. App. 1995).
Resident agent; exemption of unit owners from liability. 703.23(1)(1)
Appointment of resident agent; change in name or address.
When any property is submitted to a condominium declaration, the declarant shall appoint a resident agent for the condominium who shall be a citizen and actual resident of the state or corporation duly registered or qualified to do business in the state. The declarant shall file the name and address of the resident agent with the department of financial institutions. The name or address of the resident agent may be changed by the association or other proper authority of the condominium in the same manner and to the same extent that names and addresses of registered agents may be changed by corporations. If the association is incorporated, the registered agent for the association shall be the registered agent for the condominium.
(2) Index of names and address of resident agents.
The department of financial institutions shall keep an index of the names and addresses of resident agents and shall make the information available to the public on request.
(3) Suits brought by service on resident agent.
Suit may be brought by service on the resident agent in actions against an association, or which arise through any cause relating to the common elements.
(4) Exemption of unit owners from liability for certain claims.
Except in proportion to his or her percentage interest in the common elements, no unit owner personally is liable for damages as a result of injuries arising in connection with the common elements solely by virtue of his or her ownership of a percentage interest in the common elements, or for liabilities incurred by the association.
History: 1977 c. 407
; 1995 a. 27
Remedies for violation by unit owner.
If any unit owner fails to comply with this chapter, the declaration or bylaws, the unit owner may be sued for damages caused by the failure or for injunctive relief, or both, by the association or by any other unit owner.
History: 1977 c. 407
Tort and contract liability. 703.25(1)
An action for tort alleging a wrong done by any agent or employee of a declarant or of an association, or in connection with the condition of any portion of a condominium which a declarant or an association has the responsibility to maintain, shall be brought against the declarant or the association, as the case may be. No unit owner shall be precluded from bringing such an action by virtue of its ownership of an undivided interest in the common elements or by reason of its membership in the association or its status as an officer.
An action arising from a contract made by or on behalf of an association shall be brought against the association, or against the declarant if the cause of action arose during the exercise by the declarant of control reserved under the declaration. No unit owner shall be precluded from bringing such an action by reason of its membership in the association or its status as an officer.
A judgment for money against an association shall be a lien against any property owned by the association, and against each of the condominium units in proportion to the liability of each unit owner for common expenses as established under the declaration in an amount not exceeding the market value of the unit, but not against any other property of any unit owner.
History: 1977 c. 407
Sections 703.25 (3) and 840.10 (1) permit the filing of a lis pendens in an action for a money judgment against a condominium association as a judgment will be a lien against each condominium unit although their owners are not defendants in the action. Interlaken Service Corporation v. Interlaken Condominium Association, 222 Wis. 2d 299
, 588 N.W.2d 262
(Ct. App. 1998).
Noncompletion of units. 703.255(1)
A declarant who does not complete any unit described in the declaration within 5 years after recording the declaration under s. 703.07
shall do one of the following:
Amend the declaration to remove the description of the uncompleted units and, notwithstanding the unit owner consent requirements of ss. 703.09 (2)
and 703.13 (4)
, revise the percentage interests appurtenant to each unit and the number of votes appurtenant to each unit to adjust for the units removed.
Secure a written agreement from at least 75% of the unit owners, not including the declarant, which permits the declarant to complete the uncompleted units within 5 years after the date of the written agreement and shall either complete the units within that time period or amend the declaration as provided in par. (a)
History: 1985 a. 188