In 1963, Wisconsin and most other states in the country adopted laws permitting the condominium form of real estate ownership. A cubicle of air floating unattached above the surface of the earth while having the properties of a parcel of real estate does not fit the concepts of the common law. Specific statutory authority was necessary to allow this form of ownership and to establish its elements and limits.
Wisconsin’s first condominium law, Wis. Stat. section 230.70 (1963), merely authorized the legal existence of condominium ownership without much guidance in how to use it. Condominiums created during this early period often reflect this lack of guidance.
The original law was reshaped in 1978, under the guidance of Lowell Sweet, to establish the basis of the condominium law we now use: Wis. Stat. chapter 703. It set patterns and offered a level of guidance and limitation the original had not.
William Pharis Horton, Georgetown 1963, is a solo practitioner in Madison whose primary area is real estate, especially condominium law.
Flexibility was built into it: section 703.30(2) allows substantial compliance with the law to submit a parcel of real estate to condominium ownership status; section 703.09(1)(j) permits adaptation of a project to its particular needs so long as the basic requirements for its declaration are met; land use regulations may not be differently applied because the property is a condominium, section 703.27.
Since the parameters of this type of ownership – and in fact its very existence – depend on statute, as further needs and developments in the field arose, specific statutory fixes were adopted (e.g., permitting local review and approval of certain aspects of condominium documents, section 703.115; allowing condominiums to operate shared amenities by use of a master association, section 703.155; and simplification of the creation and operation of small condominiums, section 703.365).
The Legislative Council Study Committee on Condominium Law, established in the early 2000s, made a number of changes to the condo law – although not a comprehensive rewrite of it: 2003 Wis. Act 283.
The Need for Ongoing Updates and Review
Condominium ownership has proven a very dynamic idea. New uses and new types of development and styles of construction have challenged the structure and coverage of the condominium law. In addition to this statutory obsolescence, oversights, incomplete operational procedures, and inconsistencies between it and other laws call for on-going review and revision of condo law.
(My favorite needed correction is the fact that when Wisconsin’s lien laws, Wis. Stat. chapter 779, were rewritten, the term “mechanics lien” was applied to vehicle repair, while “construction lien” was used for improvements to real estate. The condo law still refers to mechanics liens, section 703.22; the term is now probably only appropriate if the condominium is a Winnebago.)
Another situation underlines the need for the updating and clarification of the condominium law: when condominium owners, who, after control shifts from the developer/declarant to unit owner control, wish to revise their basic documents.
The goal of the declarant is to create a valid condominium and get its unit sold. The viability of the project as a home (or office in the case of a commercial condominium) is not a primary concern. With experience and use of the project, adjustments to reflect the desires of the unit owners is appropriate. Redrafting is made more difficult if the law does not address the type of changes that are needed.
150 Good Ideas
Following service on the Legislative Council Study Committee, I began a list of prospective changes to the law, from simple corrections to supplementation in areas not fully covered by it. I quit when the list hit 150. I have been unable to find or generate legislative interest to address the subject. It does not have the political charisma of other issues.
Since I was admitted to practice the same year Wisconsin adopted its first condominium law, I find that I am running out of steam to push the statutory updating effort. It is something that should be pursued and the RPPT Section, working through the State Bar, is the logical group to do it.
If such an effort could be raised, I’ve got 150 good ideas to start on.
This article was originally published on the State Bar of Wisconsin’s Real Property, Probate and Trust Law Blog. Visit the State Bar sections or the Real Property, Probate and Trust Law Section web pages to learn more about the benefits of section membership.