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 764,
565 N.W.2d 291 (Ct. App. 1997),
96-0482.
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 city, village, or town 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 city, village, or town 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 city, village, or town 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.
823.23(2)(d)
(d) A city, village, or town may not apply for the appointment of a receiver under this subsection if an interested party has commenced and is prosecuting in a timely fashion an action or other judicial or administrative proceeding to foreclose a security interest on the residential property, or to obtain specific performance of, or forfeit, the purchaser's interest in a land contract.
823.23(2)(e)
(e) Notice of the application for the appointment of a receiver under this section shall be served on all owners, owners' agents, and interested parties. At the time that the application is filed with the court, the applicant shall file a lis pendens.
823.23(2)(f)
(f) If, following the application for appointment of a receiver, one or more of the interested parties elects to abate the nuisance, the party or parties shall be required to post security in such an amount and character as the court considers appropriate to ensure timely performance of all work necessary to abate the nuisance, as well as satisfy such other conditions as the court considers appropriate for timely completion of the abatement.
823.23(2)(g)
(g) In the event that all interested parties elect not to act under par.
(f) or to timely perform work undertaken under par.
(f), the court shall make a determination as to whether the residential property is a nuisance. The court shall determine the extent of the abatement necessary and the scope of work necessary to eliminate the conditions and shall appoint a receiver to complete the abatement.
823.23(2)(h)
(h) The court shall appoint a receiver who is one of the following:
823.23(2)(h)2.
2. A nonprofit corporation, the primary purpose of which is the improvement of housing conditions within the city, village, or town in which the property is located.
823.23(2)(i)
(i) If the court is unable to appoint a receiver from one of the entities listed in par.
(h), the court may appoint as a receiver any other person that the court determines to be competent.
823.23(2)(j)
(j) A receiver appointed by the court pursuant to this section shall not be required to give security or bond as a condition of the appointment.
823.23(3)
(3)
Authority of receiver; financing agreements; fee. 823.23(3)(a)
(a) A receiver appointed under sub.
(2) (h) or
(i) shall have the authority to do all of the following unless specifically limited by the court:
823.23(3)(a)1.
1. Take possession and control of the residential property including the right to enter into and terminate tenancies, manage and maintain the property under chs.
704 and
799 and rules related to residential rental practices promulgated under s.
100.20 (2), and charge and collect rents derived from the residential property, applying the sum of those rents to the costs incurred due to the abatement and receivership.
823.23(3)(a)2.
2. Negotiate contracts and pay all expenses associated with operation and conservation of the residential property including all utility, fuel, custodial, repair, or insurance expenses.
823.23(3)(a)3.
3. Pay all accrued property taxes, penalties, assessments, and other charges imposed on the residential property by a unit of government including any charges accruing during the pendency of the receivership.
823.23(3)(a)4.
4. Dispose of any or all abandoned personal property found at the residential property.
823.23(3)(a)5.
5. Enter into contracts and pay for the performance of any work necessary to complete the abatement.
823.23(3)(b)
(b) In addition to the powers under par.
(a), the receiver may, under such terms and conditions as a court shall allow, enter into financing agreements with public or private lenders and encumber the property so as to have moneys available to abate the nuisance. The receiver may give a holder of a purchase money security interest who received notice under sub.
(2) the first opportunity to lend the money under this paragraph.
823.23(3)(c)
(c) A receiver may charge an administration fee at an hourly rate approved by the court or at a rate of 20 percent of the total cost of the abatement, whichever the court considers more appropriate.
823.23(4)(a)
(a) In this subsection, “anticipated action" means a statement or statements by a person authorized by ordinance to bring an action under this section that leads a landlord to conclude that an action under this section may be commenced.
823.23(4)(b)
(b) A landlord or receiver, or any agent of a landlord or receiver, of a residential rental unit that is the subject of any action, or anticipated action, to abate an alleged nuisance under this section may not with respect to the tenant of the rental unit, increase rent, decrease services, bring a court proceeding for possession of the unit, refuse to renew the rental agreement, or threaten or attempt to do any of the foregoing if the tenant, in a court proceeding commenced by the tenant, landlord, or receiver, establishes by a preponderance of the credible evidence that the foregoing conduct would not have occurred but for the bringing of an action for the abatement of a nuisance under this section with respect to the rental unit or the anticipation of such an action being brought. To prevail, the tenant must also establish by a preponderance of the evidence that one of the following applies:
823.23(4)(b)1.
1. No nuisance was found with respect to the rental unit.
823.23(4)(b)2.
2. The tenant was found not to cause a nuisance with respect to the rental unit.
823.23(4)(b)3.
3. If a nuisance exists under this section, the conduct specified in this paragraph is not necessary to abate the nuisance.
823.23(4)(d)
(d) Any action or inaction by a landlord, receiver, or agent described in par.
(b) is subject to chs.
704 and
799, and any court proceeding regarding such an action or inaction shall be heard by the following court:
823.23(4)(d)1.
1. If the court proceeding is brought by a receiver, by the court that appointed the receiver.
823.23(4)(d)2.
2. If the court proceeding is brought by the tenant or landlord, in small claims court as an eviction action.
823.23(4)(e)
(e) In any action taken under par.
(b), the notice given to the tenant must state the basis for the action and the right of the tenant to contest the action.
823.23(5)
(5)
Review of expenditures by court; lien for unpaid expenses. 823.23(5)(a)(a) All moneys the receiver expends and all of the costs and obligations that he or she incurs in performing the abatement, including the receiver's administrative fee, shall be reviewed by the court for reasonableness and necessity. To the extent that the court finds the moneys, costs, or obligations to be reasonable and necessary, it shall issue an order reciting this fact as well as the amount found to be reasonable and necessary.
823.23(5)(b)
(b) If all of the costs and obligations that the court found to be reasonable and necessary under par.
(a) have not been paid, the court shall issue a judgment for the unpaid amount and file that judgment with the office of the clerk of court within 60 days after the receiver files a statement of those unpaid costs and obligations with the court and that judgment shall constitute a lien on the residential property from the date of the filing of the judgment.
823.23(6)
(6)
Effect on purchase money security interest of lien for unpaid abatement expenses. 823.23(6)(a)
(a) The issuance of the notice under sub.
(2) (b) shall constitute a default for waste under any purchase money security interest relating to the residential property subject to the notice, and if any violations of the building code listed in the notice are not corrected within 30 days after the mailing of the notice, the vendor, mortgagee, or beneficiary under any purchase money security interest may commence proceedings to exercise the remedies set forth in the purchase money security interest.
823.23(6)(b)
(b) A lien created under sub.
(5) (b) shall be prior and superior to any purchase money security interest in the residential property if all of the following apply to that purchase money security interest:
