October 8, 2021Client Alert

Michael Best Team Obtains Victory At Wisconsin Court Of Appeals Protecting Deed Restrictions Against Property

A strong team of Michael Best litigators, real estate, and municipal law experts, led by Adam Witkov, Thomas Gartner, and Nancy Leary Haggerty, just obtained a favorable decision on behalf of their clients from the Court of Appeals of Wisconsin, District III, in Nordstrom v. Kane, No. 2020AP1942, 2021 Wisc. App. LEXIS 856 (Wis. Ct. App. Sept. 28, 2021). In Nordstrom, the Court of Appeals affirmed the Circuit Court’s award of summary judgment for plaintiffs and confirmed that recorded Deed Restrictions can be enforced against a property, and that owners cannot use a “land condominium” to get around land division laws or private agreements. The Court of Appeals recommended the decision for publication.

In Nordstrom, the owners of more than 50 parcels, on a historically significant street in Door County, signed mutual Deed Restrictions, which, among other things, limited the use of certain lots, limited the number of residences on some lots, and prohibited subdividing larger lots, both in an effort to prevent overloading of a sewer line, and to preserve the wooded residential feel of the street. When a new purchaser of a large lot tried to divide that lot, using a condominium plat, the Circuit Court determined that the lot could not be divided in this manner, and the plat could not be used to allow buildings to be built closer to the shoreline. The Court of Appeals held that “[t]he condominium conversion in this case clearly separated Tract 54 into two or more precisely defined areas of land—i.e., the three site condominium units. As such, applying the relevant dictionary definitions, the condominium conversion violated the unambiguous terms of the 1993 restrictive covenants by dividing Tract 54 into additional tracts.” 

The Court of Appeals clarified that the Condominium Ownership Act is limited to interpretations under Wis. Stat. ch. 703 and does not apply to the interpretation of a restrictive covenant. The Court of Appeals further held that “[n]othing in the plain language of § 703.37 prevents a restrictive covenant from treating a condominium conversion as a division of land distinct from a subdivision, as that term is used in ch. 236.” 

The Court of Appeals also held that the Door County Land Division Ordinance treats a minor site condominium like a division of land, and that the Wisconsin Statutes permits such treatment, pursuant to Wis. Stat. § 236.45. The Court held that Door County properly enacted its Land Division Ordinance pursuant to the authority granted by Wis. Stat. §§ 236.45 and 703.27 and that the Land Division Ordinance regulates both the creation of minor land divisions and minor site condominiums. Thus, the Court of Appeals affirmed that counties have the authority to regulate land divisions, including relating to the condominiumization of land, without running afoul of the Condominium Ownership Act.

If you would like more information, please contact Adam Witkov, Nancy Leary Haggerty, Thomas Gartner, or your Michael Best attorney.

back to top