Northernaire Resort & Spa, LLC v. Northernaire Condominium Ass'n
839 N.W.2d 117
Wis. Ct. App.2013Background
- Northernaire seeks to vote the shares of 63 unbuilt units in a 108-unit condominium, which could give control of the Association if allowed.
- The court held Northernaire is entitled to one vote per constructed unit and not to vote for unbuilt units defined as non-residential units.
- Wisconsin voting is governed by the declaration and Wis. Stat. § 703.15(4)(d)1, with the declaration specifying votes per unit.
- There was an assignment/transfer history: unsold interests were transferred to M&I Regional Properties, LLC, and Northernaire later purchased the property; it is unclear if Northernaire acquired the declarant’s rights.
- The circuit court granted Northernaire declaratory relief on voting rights; the Association appealed, and the matter was remanded.
- On remand, the court must determine whether Northernaire is the assignee of the declarant, and, if so, whether it is entitled to Class B voting rights and the proper period of declarant control, plus address remaining unresolved claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether unbuilt units may vote. | Northernaire argues unbuilt units should vote. | Association argues unbuilt units are not voting units under the declaration and statute. | Unbuilt units have no votes; voting is limited to constructed units per the declaration. |
| Whether the statute requires baseline voting for all unit-owners. | Northernaire asserts §703.15(4)(d)1 baseline voting supports unbuilt-unit voting. | Association contends the declaration controls and excludes unbuilt units. | Statute allows declaration to determine votes; declaration controls and excludes unbuilt units from voting. |
| Whether Northernaire is the declarant's assignee. | Northernaire contends it may be the assignee of the declarant. | Association challenges adduced evidence of assignment. | Remand to circuit court to determine assignee status. |
| If assignee, whether Northernaire has Class B voting rights and declarant-control duration. | If assignee, Northernaire may hold Class B vote and declarant-control period. | The duration/expiration of declarant control must align with statute/declaration. | Remand to determine Class B entitlement and applicable declarant-control period. |
| What remaining claims must be addressed on remand. | Northernaire seeks remaining relief consistent with declaratory relief. | Association objects to continuing unresolved issues. | Remand to resolve unresolved claims consistent with the remand directions. |
Key Cases Cited
- Saddle Ridge Corp. v. Board of Review for Town of Pacific, 325 Wis. 2d 29 (Wis. 2010) (conflicts between taxation and declaration defers to statutory definitions of unit for taxation, not voting)
- Aluminum Indus., Corp. v. Camelot Trails Condo. Corp., 194 Wis. 2d 574 (Wis. Ct. App. 1995) (statutory definition of unit may be overridden by declaration for assessment purposes)
- Lister v. Bd. of Regents of Univ. of Wis. Sys., 240 N.W.2d 610 (Wis. 1976) (declaratory action principles and pre-litigation jurisdiction)
- State v. Martin, 470 N.W.2d 900 (Wis. 1991) (statutory interpretation—task is to construe, not rewrite, the statute)
- Solowicz v. Forward Geneva Nat’l, LLC, 780 N.W.2d 111 (Wis. 2010) (statutory interpretation and independent analysis of land-related documents)
- H&R Block E. Enters., Inc. v. Swenson, 745 N.W.2d 421 (Wis. Ct. App. 2007) (summary judgment standards and de novo review)