Real Property Update 2007

Listen to this article

Wisconsin Supreme Court

Eminent domain; comparable replacement property In satisfying its statutory obligation to make available a comparable replacement property, pursuant to sec. 32.05(8)(b)-(c), a condemnor must identify one or more properties that meet the parameters of sec. 32.19(2)(c) to serve as a comparable replacement business. 2004AP267 City of Janesville v. CC Midwest Inc.

Eminent domain; interest

Sec. 59.40(3)(c) empowers a circuit judge not only to veto the clerk’s authority to invest ‘certain funds’ and pay all interest on those funds into the county general fund, but also to direct the clerk to transfer ‘certain funds’ from the clerk’s control into a secure private account for the benefit of persons ultimately entitled to the funds.

2005AP1042 HSBC Realty Credit Corp. v. City of Glendale

Navigable waters

Since a riparian owner holds title to the center of a navigable stream, a landowner who owns both shores of a navigable stream owns the entire streambed.

2006AP1689 FAS LLC v. Town of Bass Lake

Rescission; election of remedies

The election of remedies doctrine does not bar a party from obtaining damages, even though they successfully obtained rescission of contract in a prior action.

2004AP2681 Wickenhauser v. Lehtinen

Wisconsin Court of Appeals

Declaration of interest A city’s regulatory power to condemn, assess, tax and zone property within its boundaries is an ‘interest in real property’ that would allow it to seek a declaration of interests in the property. 2006AP2639 Village of Hobart v. Oneida Tribe of Indians of Wisconsin

Deed correction

A correction of the description of property in a deed cannot be made by simply recording an affidavit of the broker.

2006AP3083 Smiljanic v. Niedermeyer

Eminent domain; limitations

The plain language of sec. 32.20 provides that a two-year limitations period runs from the time the condemnor takes physical possession of the property, and the statute provides no exception for the circumstance in which the condemnor and condemnee engage in good faith negotiations as to the amount of relocation expenses to be paid.

2006AP002292 C. Coakley Relocation Systems v. City of Milwaukee

Eminent domain; fees

Under sec. 32.28(1), only litigation expenses incurred after the date of the jurisdictional offer in a condemnation case can be recovered.

2006AP585 D.S.G. Evergreen F.L.P. v. Town of Perry

Land contracts; foreclosure

A strict foreclosure action on a land contract takes precedence over a pending foreclosure action brought by a judgment lien holder.

2006AP1578, 2006AP1579 Republic Bank of Chicago v. Lichosyt

Lis pendens

The holder of a construction lien involved in litigation need not file a lis pendens, if another party has already recorded one.

2006AP3180 Carolina Builders Corp. v. Dietzman

Minimum lot sizes

A city cannot impose an extraterritorial minimum lot size on parcels not served by its sewer system.

2006AP1288 Town of Delton v. Liston

Property taxes

A city may base property taxes based on rents paid pursuant to a long-term lease, rather than market rents for comparable properties.

2006AP1859 Walgreen Co. v. City of Madison

Restrictive covenant; remedies

Where a property owner built a house too close to a shoreline, in violation of restrictive covenant, the court has discretion to order damages to other property owners, rather than that the structure be razed.

2006AP40 Hall v. Liebovich

Shoreland zoning

Where a shoreland owner was given permission to build a second floor on the condition he remove a nonconforming deck, the zoning board properly denied him a variance seeking to keep the deck.

2006AP3067 Block v. Waupaca County Board of Zoning Adjustment

Variances; hardship

Where a hardship was not self-created, it was not error to grant a variance.

2006AP1268 Accent Developers LLC v. City of Menomonee Board of Zoning Appeals