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Casenotes

Wisconsin
Condominiums

Solowicz v Forward Geneva National, 763 NW2d 828, 2008 AP 10 (Wis Ct App 2008).

Facts:Geneva National was a quasi-town in Wisconsin; it was owned, developed, and maintained by the defendants (collectively "the Developer"). Geneva National consisted at the time of multi-family residential units (condominiums), single-family units, commercial property, and recreational facilities and was governed by two separate entities. The first was the Geneva National Trust, which preserved and maintained the natural environment. The second was a community association that provided utilities and maintained the common property in Geneva National. Five types of voting members are represented on the Association's Board of Directors, including the Developer.

Despite having existed for eighteen years, Geneva National remained under the control of the Developer because a covenant provided it limited control over both governing entities until 85% of units had been sold. Resident Mark Solowicz requested a declaratory judgment, claiming that Geneva National had to turn over control to its residents on the grounds that the Developer's continued controlling presence was a violation of the Wisconsin Condominium Ownership Act, Section 703.15. The trial court granted summary judgment in favor of the Developer.

Holding:Affirmed. The controlling statute in this instance, Wisconsin Statutes Section 703.15, provides for time limits on developer control for condominiums. The court, however, found this statute not applicable to master-planned communities. The plain language only provides for condominiums and there was no indication of legislative intent to control master-planned communities either at the inception or in renewed consideration of the statute. Furthermore, the inclusion of condominiums within the development did not make the whole community subject to the act because the control of the individual condominiums has already been turned over to the residents, per the act. The court further recognized the significant differences between condominiums and master-planned communities regarding the complexity of development and the necessity for the Developers to retain control so that they may react to market conditions. The long-term nature of the investment in master-planned community as well as the need for a flexible vision, the court found, were compelling reasons to find that master-planned communities do not constitute condominiums for the purpose of the Condominium Ownership Act.

The court found against Solowicz's contention that the covenant provision regarding Developer control should be considered void because the timeframe for Developer control is unreasonable, vague, and against public policy. The court declared a percentage of sale or completion to be a properly defined time frame. Solowicz argued that the possibility of the Developer continually adding units - thus never reaching 85% of units sold - in order to preserve control makes it unreasonable. The court, however, found that this was not unreasonable in this case because there was no evidence on the record that the Developer intended or had any reason to build additional units.

[Last update: 6-11-09]