AB254: Bill Text

AB254, s. 30 Section 30. 703.16 (2) (b) of the statutes is created to read:

AB254,19,2 703.16 (2) (b) During the period of declarant control of the association under s. 703.15 (2) (c), if any unit owned by the declarant is exempt from assessments for common expenses until the unit is sold, the total amount assessed against units that are not exempt from assessments may not exceed the amount that equals nonexempt units' projected percentage share of common expenses, based on the anticipated common expenses set forth in the annual budget under s. 703.161 (2) (a). The declarant is liable for the balance of the actual common expenses.

Note: Provides that, during the period of declarant control, if a unit owned by the declarant is exempt from assessments for common expenses until the unit is sold, the total amount that may be assessed against units that are not exempt from assessments may not exceed the units' projected percentage share of common expenses; the declarant is liable for the balance of the actual expenses.

AB254, s. 31 Section 31 . 703.16 (3) to (9) of the statutes are renumbered 703.165 (2) to (8), and 703.165 (2), (4), (5) (intro.) and (8) (form), as renumbered, are amended to read:

AB254,19,16 703.165 (2) Liability for assessments. A unit owner shall be liable for all assessments, or instalments thereof, coming due while owning a unit , including any assessments coming due during the pendency of any claim by the unit owner against the association or during any period in which the unit is not occupied by the unit owner or is leased or rented to any other person. 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.

Note: Expressly provides that a condominium unit owner is liable for any assessments coming due during the pendency of any claim by the unit owner against the association or during any period the unit is not occupied by the unit owner or is leased or rented to any other person. While the new language is within the scope of current language, it is added for clarification.

AB254,20,5 (4) Statement. 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. The grantee is not liable for, nor shall the unit conveyed be subject to a lien which that is not filed under sub. (4) (3) 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 that is not filed under sub. (4) (3) prior to the request for the statement against the grantee.

AB254,20,9 (5) Priority of lien. (intro.) 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 A lien under this section is prior to all other liens except:

AB254,20,10 (8) (form)

AB254,20,11 Statement of Condominium Lien

AB254,20,17 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) (damages to the condominium) (penalties for violation of condominium declaration, bylaws, or rules) for the period from (date) to (date), plus interest thereon at the rate of ....%, costs of collection, and actual attorney fees.

AB254,20,18 Association

AB254,20,19 By: ..........................

AB254,20,20 Officer's title (or agent)

AB254,20,21 Address

AB254,20,22 Phone number

AB254,20,25 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.

AB254,21,1 ...............................

AB254,21,2 Officer (or agent)

Note: See Sec. 34 of the bill, which creates an expanded definition of "assessments" for purposes of the above lien provisions.

AB254, s. 32 Section 32. 703.161 of the statutes is created to read:

AB254,21,5 703.161 Annual budget. (1) Application. This section applies to any condominium that includes at least one unit that is restricted to residential use.

AB254,21,7 (2) Requirement. An association annually shall adopt and distribute to all unit owners an annual budget setting forth all of the following:

AB254,21,10 (a) All anticipated common expenses and any amounts to be allocated to a statutory reserve account under s. 703.163 and to any other funds for future expenditures.

AB254,21,11 (b) The amount and purpose of any other anticipated association expenditure.

AB254,21,13 (c) The amount in any statutory reserve account under s. 703.163 or any other funds held for future expenditures.

AB254,21,14 (d) Any common surpluses.

AB254,21,15 (e) The amount and source of any income, other than unit owner assessments.

AB254,21,17 (f) The aggregate amount of any assessment to be levied against unit owners and the purpose of the assessment.

Note: Requires the condominium association for condominiums that include at least one unit that is restricted to residential use to annually adopt and distribute to all unit owners an annual budget setting forth:

1. All anticipated common expenses and any amounts to be allocated to a statutory reserve account and to any other funds for future expenditures.

2. The amount and purpose of any other anticipated association expenditure.

3. The amount in any statutory reserve account or any other funds held for future expenditures.

4. Any common surpluses.

5. The amount and source of any income, other than unit owner assessments.

6. The aggregate amount of any assessment to be levied against unit owners and the purpose of the assessment.

If there is a statutory reserve account for the condominium, the annual budget must provide reserve funds for the account. See s. 703.163 (7) (intro.), created by Sec. 33 of the bill, below.

AB254, s. 33 Section 33 . 703.163 of the statutes is created to read:

AB254,22,2 703.163 Statutory reserve account. (1) Definitions. In this section:

AB254,22,5 (a) "Reserve funds" means funds derived from assessments against unit owners that are deposited in a statutory reserve account. The term does not include funds for ordinary operations, including amounts held for operational contingencies.

AB254,22,7 (b) "Statutory reserve account" means a separate account established under this section to hold reserve funds.

AB254,22,11 (c) "Statutory reserve account statement" means a statement indicating whether a statutory reserve account has been established for a condominium and, if there is no statutory reserve account, how it is anticipated that future expenditures for the repair and replacement of common elements will be funded.

AB254,22,14 (2) Application; other reserve accounts not affected. (a) 1. Except as provided in subds. 2. and 3., this section applies to condominiums consisting exclusively of units that are restricted to residential uses.

AB254,22,17 2. This section does not apply to a small condominium unless the declarant or the association, with the written consent of a majority of the unit votes, elects to be governed by this section.

AB254,22,21 3. This section applies to a condominium consisting of both residential and nonresidential units if the declarant or the association, with the written consent of a majority of the unit votes of the residential units and a majority of the unit votes of the nonresidential units, elects to be governed by this section.

AB254,23,2 (b) This section does not affect a reserve account or a similar account existing on the effective date of this paragraph .... [revisor inserts date], or a reserve account or similar account established on or after the effective date of this paragraph .... [revisor inserts date], that is not a statutory reserve account.

AB254,23,10 (3) New condominiums; establishment of statutory reserve account by declarant. (a) Except as provided in par. (c), the declarant of a condominium that is created on or after the effective date of this paragraph .... [revisor inserts date], shall establish a statutory reserve account when the condominium is created and shall execute a statutory reserve account statement. The declarant shall determine the annual amount to be assessed unit owners for reserve funds after considering the factors under sub. (7) (a) to (e) and, if the condominium is a conversion condominium with more than 4 units, the report prepared under s. 703.33 (2) (cm) 1.

AB254,23,22 (b) Reserve fund assessments for the reserve account established under par. (a) may first be assessed on a particular unit when a certificate of occupancy has been issued that applies to that unit. The declarant may elect to defer payment of the accrued assessments for a particular unit until the first conveyance of that unit. The declarant may not defer payment of accrued reserve fund assessments for more than 5 years from the date the exterior construction of the building in which the unit is located is completed. The declarant is liable for all reserve fund assessments on a unit that accrue before the unit is conveyed. If there are accrued reserve fund assessments against a unit, the declarant shall disclose in writing to the first purchaser of the unit whether the declarant has included any accrued reserve fund assessments in the purchase price of the unit or, if not included, how any accrued assessment will be paid.

AB254,24,2 (c) The declarant may elect not to establish a statutory reserve account under par. (a) at the time the condominium is created or, at any time thereafter, may elect to terminate a statutory reserve account during the period of declarant control under s. 703.15 (2) (c). An election under this paragraph shall be made by executing a statutory reserve account statement.

AB254,24,11 (4) New condominium; determination by association to establish statutory reserve account. If a declarant has elected under sub. (3) (c) not to establish a statutory reserve account or to terminate an account, establishment of a statutory reserve account shall be addressed at the first annual meeting of the association held after, or at a special meeting of the association held within one year after, the expiration of any period of declarant control under s. 703.15 (2) (c). A statutory reserve account is established under this subsection with the written consent of a majority of the unit votes. If a statutory reserve account is established under this subsection, the association shall execute a statutory reserve account statement.

AB254,24,21 (5) Existing condominiums; statutory reserve account unless elect otherwise. The association for a condominium created before the effective date of this subsection .... [revisor inserts date], shall, within 18 months after the effective date of this subsection .... [revisor inserts date], or within 18 months after the expiration of any period of declarant control under s. 703.15 (2) (c), whichever is later, establish a statutory reserve account unless the association, with the written consent of at least two-thirds of the unit votes, elects not to establish a statutory reserve account. Upon the establishment of or the election not to establish a statutory reserve account, the association shall execute a statutory reserve account statement.

AB254,25,2 (6) Election by association to establish or terminate statutory reserve account. (a) If an association elects not to establish a statutory reserve account under sub. (4) or (5), or if an association elects to terminate a statutory reserve account under par. (b), the association may at any time thereafter elect to establish a statutory reserve account with the written consent of a majority of the unit votes.

AB254,25,7 (b) An association may, at any time with the written consent of at least two-thirds of the unit votes, terminate a statutory reserve account established under par. (a) or sub. (3) (a), (4), or (5) except that a statutory reserve account established by a declarant under sub. (3) (a) may not be terminated until after the expiration of any period of declarant control under s. 703.15 (2) (c).

AB254,25,9 (c) Upon the establishment or termination of a statutory reserve account, the association shall execute a statutory reserve account statement.

AB254,25,14 (7) Reserve fund. If there is a statutory reserve account for the condominium, the annual budget adopted under s. 703.161 shall provide for reserve funds. Reserve funds may be used as provided in sub. (8). The association shall determine the amount to be assessed unit owners for reserve funds after considering all of the following:

AB254,25,15 (a) The reserve funds currently in the statutory reserve account.

AB254,25,17 (b) The estimated cost of repairing or replacing common elements, other than routine maintenance.

AB254,25,18 (c) The estimated remaining useful life of common elements.

AB254,25,21 (d) The approximate proportion of the estimated cost of repairing or replacing common elements that will be covered by the statutory reserve account and the approximate proportion that will be funded by other means.

AB254,25,22 (e) Any other factor that the association considers relevant.

AB254,25,25 (8) Use of statutory reserve account. (a) Except as provided in par. (b), funds in a statutory reserve account may be used for the repair and replacement of common elements, other than routine maintenance.

AB254,26,6 (b) Funds in a statutory reserve account may be used for normal repair or maintenance, customary services, or other operational costs in excess of amounts budgeted and any contingency funds available for these purposes, with the written consent of at least two-thirds of the unit votes. Funds from the statutory reserve account used under this paragraph must be replaced within 3 years from the date of withdrawal.

AB254,26,8 (9) Permitted investment of reserve funds. Reserve funds may be invested in any of the investments listed under s. 66.0603 (1m) (a).

AB254,26,14 (10) Liability immunity. No declarant, unit owner, association, or director, officer, manager, or employee of an association is liable in connection with the establishment or termination of, or decision not to establish or terminate, a statutory reserve account or for any deficiencies in the statutory reserve account that relate to the determination of amounts to be assessed for reserve funds. This subsection is in addition to any other liability protection available under law.

AB254,26,18 (11) Recording of statutory reserve account statement. Each statutory reserve account statement executed under this section shall bear the name of the condominium as it appears on the declaration and shall be recorded with the register of deeds of the county where the condominium instruments are recorded.

Note: Requires a declarant or association to establish a "statutory reserve account" to fully or partially fund repairs and replacements of common elements other than routine maintenance, unless the declarant or association elects not to establish an account.

The statutory reserve account provisions generally apply only to exclusively residential condominiums, other than small condominiums. Small condominiums and mixed-use (residential and nonresidential units) condominiums may choose to be governed by the statutory reserve account provisions.

The statutory reserve account provisions expressly do not affect: (1) existing reserve accounts or similar accounts; or (2) reserve accounts or similar accounts that are not statutory reserve accounts established on or after the effective date of the bill.

The declarant must establish a statutory reserve account for a new condominium (a condominium established on or after the effective date of the bill) but the declarant may opt out of the requirement. If the declarant establishes a statutory reserve account, assessments for the account may first be assessed against a particular unit when a certificate of occupancy has been issued that applies to that unit. The declarant may defer payment of assessments on a particular unit until the unit is conveyed, but for not more than 5 years from the date the exterior construction of the building in which the unit is located is completed. If there are accrued reserve fund assessments against a unit, the declarant must disclose to the first purchaser of the unit whether any of the accrued assessments are included in the purchase price and, if not, how any accrued assessment will be paid.

If the declarant has opted out, establishment of an account must be addressed at the first annual meeting of the association held after, or at a special meeting held within one year of, termination of declarant control. A statutory reserve account is established by the association with the written consent of a majority of the unit votes. If the declarant has not opted out of the statutory reserve account requirement for a new condominium, the association at any time after the expiration of declarant control may elect to terminate the account with the written consent of at least two-thirds of the unit votes.

Existing condominiums (condominiums established before the effective date of the bill) must, within 18 months after the bill's effective date, or within 18 months after the expiration of declarant control, whichever is later, establish a statutory reserve account unless, with the written consent of at least two-thirds of the unit votes, the association elects not to establish an account.

More generally, an association may at any time elect to establish a statutory reserve account, with the written consent of a majority of the unit votes, or to terminate a statutory reserve account, with the written consent of at least two-thirds of the unit votes.

Factors that a declarant or association is to consider in determining the amount to be assessed unit owners for the statutory reserve account include: funds currently in the account; the estimated cost of repairing or replacing common elements, other than routine maintenance; the estimated remaining useful life of common elements; the approximate proportion of the estimated cost of repairing or replacing common elements that will be covered by the account and the approximate proportion that will be funded by other means; and any other factor considered relevant. In the case of a conversion condominium, the declarant must also consider the required report of an independent architect or engineer.

Funds in a statutory reserve account may be invested in any investment in which local governments are generally authorized to invest by statute.

Funds in a statutory reserve account may be used only for the repair and replacement of common elements, other than routine maintenance, unless there is written consent of at least two-thirds of the unit votes to use the funds for normal repair or maintenance, customary services or other operational costs in excess of amounts budgeted. If used for the latter purposes, the funds must be replaced within 3 years from the date of withdrawal from the account.

A "statutory reserve account statement" must be executed when a statutory reserve account is established or an election is made not to have or to terminate a statutory reserve account. If an election not to establish, or to terminate, a statutory reserve account is made, the statement must indicate how it is anticipated that future expenditures for repairs and replacements of common elements will be funded. The statement must be recorded with the register of deeds.

Finally, a declarant, unit owner, association, or director, officer, manager or employee of an association is not liable in connection with the establishment or termination, or decision not to establish or terminate, a statutory reserve account or for any deficiencies in a statutory reserve account that relate to the determination of amounts to be assessed for reserve funds.

AB254, s. 34 Section 34 . 703.165 (title) and (1) of the statutes are created to read:

AB254,28,2 703.165 (title) Lien for unpaid common expenses, unpaid damages, and unpaid penalties.

AB254,28,6 (1) Definition. In this section, "assessments" means regular and special assessments for common expenses and charges, fines, or assessments against specific units or unit owners for damages to the condominium or for penalties for violations of the declaration, bylaws, or association rules.

Note: Creates a title for new s. 703.165 and a definition of assessment for use throughout the section. The definition expands the scope of the lien provisions of current s. 703.16 (3) to (9) (renumbered s. 703.165 (2) to (8) by Sec. 31 of the bill). Currently, those lien provisions apply to failure to pay assessments for common expenses. The new definition, in combination with the treatment of s. 703.16 (3) to (9) by Sec. 31 of the bill, expands the coverage of the lien provisions to include failure to pay charges, fines, or assessments for damages to the condominium and for violations of the declaration, bylaws, or association rules.

AB254, s. 35 Section 35 . 703.19 (8) of the statutes is amended to read:

AB254,28,18 703.19 (8) Preservation of the right of appeal. The owner of each unit taken shall have the individual right of may appeal of the necessity of taking and of the condemnation award made for the taking. An association shall have the right of A unit owner may appeal of the necessity of taking of the common elements and the right of appeal of, and the condemnation award made for the taking, of the owner's interest in 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.

Note: Repeals the right of an association to appeal the necessity of taking, and the condemnation award made for the taking, of the common elements and the binding effect of the appeal upon individual unit owners. The revision reflects the policy judgment that individual unit owners should have the right of appeal. See also s. 703.195, created by Sec. 36 of the bill, below, for a related provision.

AB254, s. 36 Section 36 . 703.195 of the statutes is created to read:

AB254,29,3 703.195 Acquisition of common elements by condemnors. (1) Definitions. In this section:

AB254,29,5 (a) "Acquire" means to obtain title to real property by purchase or condemnation.

AB254,29,7 (b) "Common elements" means all of a condominium except its units and any limited common elements.

AB254,29,9 (c) "Condemnor" means a person specified in s. 32.01 (1) who has the authority to condemn property under ch. 32.