823.08 Annotation
Sub. (4) unequivocally mandates the recovery of reasonable attorney fees. Zink v. Khwaja, 2000 WI App 58,
233 Wis. 2d 691,
608 N.W.2d 394.
823.08 Annotation
Protecting the right to farm: Statutory limits on nuisance actions against the farmer. Grossman and Fischer. 1983 WLR 95.
823.085
823.085
Actions against owners or operators of solid waste facilities. 823.085(2)
(2) In any action finding a solid waste facility or the operation of a solid waste facility to be a public or private nuisance, if the solid waste facility was licensed under
s. 289.31 (1) and was operated in substantial compliance with the license, the plan of operation for the solid waste facility approved by the department of natural resources and the rules promulgated under
s. 289.05 (1) that apply to the facility, then all of the following apply:
823.085(2)(a)
(a) Notwithstanding
s. 823.03, the court may not order closure of the solid waste facility or substantial restriction in the operation of the solid waste facility unless the court determines that the continued operation of the solid waste facility is a threat to public health and safety.
823.085(2)(b)
(b) The department of natural resources shall comply with a request by the court to provide suggestions for practices to reduce the offensive aspects of the nuisance.
823.085(2)(c)
(c) The amount recovered by any person for damage to real property may not exceed the value of the real property as of the date that the solid waste facility began operation increased by 8% per year.
823.085 History
History: 1991 a. 269;
1995 a. 227.
823.09
823.09
Bawdyhouses declared nuisances. Whoever shall erect, establish, continue, maintain, use, occupy or lease any building or part of building, erection or place to be used for the purpose of lewdness, assignation or prostitution, or permit the same to be used, in the state of Wisconsin, shall be guilty of a nuisance and the building, erection, or place, in or upon which such lewdness, assignation or prostitution is conducted, permitted, carried on, continued or exists, and the furniture, fixtures, musical instruments and contents used therewith for the same purpose are declared a nuisance, and shall be enjoined and abated.
823.09 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.09.
823.09 Annotation
Fourth degree sexual assault under s. 940.225 (3m) constitutes lewdness and supports a finding of nuisance. State v. Panno,
151 Wis. 2d 819,
447 N.W.2d 74 (Ct. App. 1989).
823.09 Annotation
Read in conjunction with s. 823.11, ss. 823.09 and 823.10 due not violate due process because they provide the opportunity to challenge prima facie evidence that a defendant knowingly permitted prostitution to occur on his property, and also allow the collateral challenge of the underlying prostitution convictions. The statutes also do not violate constitutional rights to freedom of association, the protection against government establishment of religion and equal protection. State v. Schultz,
218 Wis. 2d 798,
582 N.W.2d 113 (Ct. App. 1998).
823.10
823.10
Disorderly house, action for abatement. If a nuisance, as defined in
s. 823.09, exists the district attorney or any citizen of the county may maintain an action in the circuit court in the name of the state to abate the nuisance and to perpetually enjoin every person guilty thereof from continuing, maintaining or permitting the nuisance. All temporary injunctions issued in the actions begun by district attorneys shall be issued without requiring the undertaking specified in
s. 813.06, and in actions instituted by citizens it shall be discretionary with the court or presiding judge to issue them without the undertaking. The conviction of any person, of the offense of lewdness, assignation or prostitution committed in the building or part of a building, erection or place shall be sufficient proof of the existence of a nuisance in the building or part of a building, erection or place, in an action for abatement commenced within 60 days after the conviction.
823.10 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 762, 782 (1975); Stats. 1975 s. 823.10;
1977 c. 449.
823.10 Annotation
Fourth degree sexual assault under s. 940.225 (3m) constitutes lewdness and supports a finding of nuisance. State v. Panno,
151 Wis. 2d 819,
447 N.W.2d 74 (Ct. App. 1989).
823.10 Annotation
Read in conjunction with s. 823.11, ss. 823.09 and 823.10 due not violate due process because they provide the opportunity to challenge prima facie evidence that a defendant knowingly permitted prostitution to occur on his property, and also allow a collateral challenge of the underlying prostitution convictions. The statutes also do not violate the freedom of association, the protection against government establishment of religion and the right to equal protection. State v. Schultz,
218 Wis. 2d 798,
582 N.W.2d 113 (Ct. App. 1998).
823.11
823.11
Evidence; dismissal of action; costs. In actions begun under
s. 823.10 the existence of any nuisance defined by
s. 823.09 shall constitute prima facie evidence that the owner of the premises affected has permitted the same to be used as a nuisance; and evidence of the general reputation of the place shall be admissible to prove the existence of such nuisance. If the complaint is filed by a citizen, it shall not be dismissed, except upon a sworn statement made by the complainant and the complainant's attorney, setting forth the reasons why the action should be dismissed, and the dismissal shall be approved by the district attorney of the county in writing or in open court. If the court is of the opinion that the action ought not to be dismissed it may direct the district attorney of the county to prosecute said action to judgment. If the action is brought by a citizen, and the court finds that there was no reasonable ground or cause for said action the costs shall be taxed to such citizen.
823.11 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 762, 782 (1975); Stats. 1975 s. 823.11;
1993 a. 486.
823.11 Annotation
Read in conjunction with s. 823.11, ss. 823.09 and 823.10 due not violate due process because they provide the opportunity to challenge prima facie evidence that a defendant knowingly permitted prostitution to occur on his property, and also allow the collateral challenge of the underlying prostitution convictions. The statutes also do not violate constitutional rights to freedom of association, the protection against government establishment of religion and equal protection. State v. Schultz,
218 Wis. 2d 798,
582 N.W.2d 113 (Ct. App. 1998).
823.113
823.113
Drug or criminal gang house a public nuisance. 823.113(1)(1) Any building or structure that is used to facilitate the delivery, distribution or manufacture, as defined in
s. 961.01 (6),
(9) and
(13) respectively, of a controlled substance, as defined in
s. 961.01 (4), or a controlled substance analog, as defined in
s. 961.01 (4m), and any building or structure where those acts take place, is a public nuisance and may be proceeded against under this section.
823.113(1m)(b)
(b) Any building or structure that is used as a meeting place of a criminal gang or that is used to facilitate the activities of a criminal gang, is a public nuisance and may be proceeded against under this section.
823.113(2)
(2) If a nuisance exists, the city, town or village where the property is located may maintain an action in the circuit court to abate the nuisance and to perpetually enjoin every person guilty of creating or maintaining the nuisance, the owner, lessee or tenant of the building or structure where the nuisance exists and the owner of the land upon which the building or structure is located, from continuing, maintaining or permitting the nuisance.
823.113(3)
(3) If the existence of the nuisance is shown in the action to the satisfaction of the court, either by verified complaint or affidavit, the court shall issue a temporary injunction to abate and prevent the continuance or recurrence of the nuisance, including the issuance of an order requiring the closure of the property. Any temporary injunction issued in an action begun under this subsection shall be issued without requiring the undertaking specified in
s. 813.06.
823.113(4)
(4) In ruling upon a request for closure, whether for a defined or undefined duration, the court shall consider all of the following factors:
823.113(4)(a)
(a) The extent and duration of the nuisance at the time of the request.
823.113(4)(b)
(b) Prior efforts by the defendant to comply with previous court orders to abate the nuisance.
823.113(4)(c)
(c) The nature and extent of any effect that the nuisance has upon other persons, such as residents or businesses.
823.113(4)(d)
(d) The effect of granting the request upon any resident or occupant of the premises who is not named in the action, including the availability of alternative housing or relocation assistance, the pendency of any action to evict a resident or occupant and any evidence of participation by a resident or occupant in the nuisance activity.
823.113 Annotation
An order under this section for closure and sale of an apartment house did not violate the constitutional protection against excessive fines. City of Milwaukee v. Arrieh,
211 Wis. 2d 762,
565 N.W.2d 291 (Ct. App. 1997).
823.114
823.114
Judgment and order of sale of property. 823.114(1)
(1) If the existence of the nuisance is established in an action under
s. 823.113, an order of abatement shall be entered as part of the judgment in the case. In that order, the court shall do all of the following:
823.114(1)(a)
(a) Direct the removal from the building or structure of all furniture, equipment and other personal property used in the nuisance.
823.114(1)(c)
(c) Order the closure of the building or structure for any purpose.
823.114(1)(d)
(d) Order the closure of the building or structure until all building code violations are corrected and a new certificate of occupancy is issued if required by the city, town or village within which the property is located and the building or structure is released under
s. 823.15 or sold under
s. 823.115.
823.114(1)(e)
(e) Order the sale of the building or structure and the land upon that it is located or, if the requirements under
s. 66.0413 (1) (c) are met, order that the building or structure be razed, the land sold, and the expense of the razing collected under
s. 823.06.
823.114(2)
(2) Any person breaking and entering or using a building or structure ordered closed under
sub. (1) shall be punished for contempt under
s. 823.12.
823.115
823.115
Sale of property and use of proceeds. 823.115(1)
(1) If personal and real property are ordered sold under
s. 823.114, and the real property is not released to the owner under
s. 823.15, the plaintiff in the action under
s. 823.113 shall sell the property at the highest available price. The city, town or village may sell the property at either a public or private sale. The proceeds of the sale shall be applied to the payment of the costs of the action and abatement and any liens on the property, and the balance, if any, paid as provided in
sub. (2). The plaintiff may file a notice of the pendency of the action as in actions affecting the title to real estate and if the owner of the building or structure, or the owner of the land upon which the building or structure is located, is found guilty of the nuisance, the judgment for costs of the action not paid out of the proceeds of the sale of the property shall constitute a lien on the real estate prior to any other lien created after the filing of the lis pendens, except a lien under
s. 292.31 (8) (i) or
292.81.
823.115(2)
(2) Any balance remaining from the proceeds of the sale of property under
sub. (1) shall be paid in equal shares to the following agencies or officials for the purposes listed:
823.115(2)(a)
(a) The law enforcement agency of the city, town or village that brought the action, to be used for gang-related and drug-related law enforcement activities.
823.115(2)(b)
(b) The treasurer of the city, town or village that brought the action, to be placed in a fund that is used to provide grants to organizations for gang abatement and drug and alcohol treatment programs for residents of the city, town or village that brought the action.
823.115(2)(c)
(c) The treasurer of the city, town or village that brought the action, to be placed in a fund that is used to provide grants to organizations for housing rehabilitation, neighborhood revitalization and neighborhood crime prevention activities in the city, town or village that brought the action.
823.12
823.12
Punishment for violation of injunction. A party found guilty of contempt for the violation of any injunction granted under
ss. 823.09 to
823.15 shall be punished by a fine of not less than $200 nor more than $1,000 or by imprisonment in the county jail not less than 3 nor more than 6 months or both.
823.12 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 762 (1975), 782; Stats. 1975 s. 823.12.
823.13
823.13
Judgment and execution; sale of fixtures. If the existence of the nuisance be established in an action under
s. 823.09, or in a criminal proceeding, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all fixtures, furniture, musical instruments, or movable property used in conducting the nuisance, and shall direct the sale thereof in the manner provided for the sale of chattels under execution, and the effectual closing of the building or place against its use for any purpose, and so keeping it closed for a period of one year, unless sooner released. If any person shall break and enter or use a building, erection, or place so directed to be closed the person shall be punished as for contempt, as provided in
s. 823.12.
823.13 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 762, 782 (1975); Stats. 1975 s. 823.13;
1993 a. 486.
823.14
823.14
Application of proceeds of sale; lis pendens. The proceeds of the sale of such personal property, shall be applied in the payment of the costs of the action and abatement and the balance, if any, shall be paid to the defendant. The plaintiff may file a notice of the pendency of the action as in actions affecting the title to real estate; and if the owner of the premises affected be adjudged guilty of the nuisance, the judgment for costs shall constitute a lien thereon prior to any other lien created after the filing of such lis pendens.
823.14 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.14.
823.15
823.15
Undertaking to release building or structure. The owner of any building or structure, or the owner of the land upon which the building or structure is located, affected by an action under
s. 823.10 or
823.113 may appear at any time after the commencement of the action and file an undertaking in a sum and with the sureties required by the court to the effect that he or she will immediately abate the alleged nuisance, if it exists, and prevent the same from being reestablished in the building or structure, and will pay all costs that may be awarded against him or her in the action. Upon receipt of the undertaking, the court may dismiss the action as to the building or structure and revoke any order previously made closing the building or structure; but that dismissal and revocation shall not release the property from any judgment, lien, penalty, or liability that the property is subject to by law. The court has discretion in accepting any undertaking, the sum, supervision, satisfaction, and all other conditions of the undertaking, but the period that the undertaking shall run may not be less than one year.
823.15 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 762, 782 (1975); Stats. 1975 s. 823.15;
1989 a. 122.
823.16
823.16
Remedy of lessor of place of prostitution. If the lessee of a place has been convicted of keeping that place as a place of prostitution or if such place has been adjudged a nuisance under this chapter, the lease by which such place is held is void and the lessor shall have the same remedies for regaining possession of the premises as the lessor would have against a tenant holding over the tenant's term.
823.16 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.16;
1993 a. 486.
823.20
823.20
Gambling place a public nuisance. 823.20(1)
(1) Any gambling place, as defined in
s. 945.01 (4) (a), is a public nuisance and may be proceeded against under this chapter.
823.20(2)
(2) Any citizen of the county in which such nuisance exists may bring an action, without showing special damages or injury, to enjoin or abate the nuisance. The court after 3 days' notice to the defendants may allow a temporary injunction without bond. The action shall be dismissed only if the court is satisfied that it should be dismissed on its merits. If application for dismissal is made, the court may continue the action and by order require the attorney general to prosecute it.
823.20(3)
(3) If the lessee of the place has been convicted of the crime of commercial gambling because of having operated that place as a gambling place or if such place has been adjudged a nuisance under this chapter, the lease by which such place is held is void and the lessor shall have the same remedies for regaining possession of the premises as the lessor would have against a tenant holding over the tenant's term.
823.20 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.20;
1993 a. 486;
1995 a. 11.
823.21
823.21
Dilapidated buildings declared nuisances. Any building which, under
s. 66.0413 (1) (b) 1., has been declared so old, dilapidated or out of repair as to be dangerous, unsafe, unsanitary or otherwise unfit for human habitation or has been determined to be unreasonable to repair under
s. 66.0413 (1) (b) 1. is a public nuisance and may be proceeded against under this chapter.
823.21 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.21;
1993 a. 213;
1999 a. 150.
823.215
823.215
Dilapidated wharves and piers in navigable waters declared nuisances. Any wharf or pier in navigable waters which is declared so old, dilapidated or in need of repair that it is dangerous, unsafe or unfit for use under
s. 30.13 (5m) (a) 2. or repair is determined unreasonable under that section is a public nuisance and may be proceeded against under this chapter.
823.215 History
History: 1981 c. 252;
1999 a. 150 ss.
666,
672;
2001 a. 30 s.
108.
823.23
823.23
Receivership for public nuisances. 823.23(1)(a)
(a) "Abatement" means the removal, suspension, improvement, or correction of any condition at a residential property that has been adjudicated to constitute a nuisance. "Abatement" may include the demolition of some or all of the improvements on the residential property if the residential property is unoccupied.
823.23(1)(b)
(b) "Interested party" means any person that possesses any legal or equitable interest of record in the residential property, including the holder of any lien or encumbrance of record on the residential property.
823.23(1)(d)
(d) "Purchase money security interest" means any of the following:
823.23(1)(d)1.
1. The interest of a vendor under a land contract relating to the residential property if the contract was recorded prior to the issuance of the notice under
sub. (2) (b).
823.23(1)(d)2.
2. The interest of a mortgagee under a purchase money mortgage relating to the residential property if the mortgage was recorded prior to the issuance of the notice under
sub. (2) (b).
823.23(1)(d)3.
3. The interest of a beneficiary under a purchase money trust deed relating to the residential property if the trust deed was recorded prior to the issuance of the notice under
sub. (2) (b).
823.23(1)(e)
(e) "Residential property" means land, together with all the improvements erected on the land, that is located in a 1st or 2nd class city and used or intended to be used for residential purposes, including single-family, duplex, and multifamily structures, and mixed-use structures that have one or more residential units.
823.23(2)
(2) Receivership for buildings that constitute a nuisance; procedure. 823.23(2)(a)(a) If a residential property is alleged to be a nuisance under this chapter or
s. 254.595, the 1st or 2nd class city in which the property is located may apply to the circuit court for the appointment of a receiver to abate the nuisance.
823.23(2)(b)
(b) At least 60 days before filing an application for the appointment of a receiver under
par. (a), the 1st or 2nd class city shall give written notice by 1st class mail to all owners, owner's agents, and interested parties at their last-known address of the intent to file the application and by publication as a class 1 notice under
ch. 985. The notice shall include all of the following information:
823.23(2)(b)1.
1. The address and other information that identifies the residential property.
823.23(2)(b)2.
2. The conditions of the residential property that constitute a nuisance and that resulted in the decision to apply for a receiver.
823.23(2)(b)3.
3. The name, address, and telephone number of the person or department where additional information can be obtained concerning the nuisance and the action necessary to abate the nuisance.
823.23(2)(b)4.
4. That the appointment of a receiver may be requested unless action is taken to abate the nuisance within 60 days after receipt of the notice.
823.23(2)(c)
(c) If a notice sent under
par. (b) is recorded with the register of deeds in the county in which the residential property is located, the notice is considered to have been served, as of the date the notice is recorded, on any person claiming an interest in the residential property as a result of a conveyance from the owner of record unless the conveyance was recorded before the recording of the notice.
