COURT OF APPEALS
DECISION
DATED AND FILED
November 26, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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Charles Zabler,
Plaintiff-Respondent,
v.
Coachlight Village Town Houses
Condominium IV,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Waukesha County: kathryn
w. foster, Judge. Affirmed.
Before Brown, C.J., Anderson,
P.J., and Snyder, J.
¶1 PER CURIAM.
Coachlight Village Town Houses Condominium IV appeals from the summary
judgment awarded to Charles Zabler. Coachlight Village argues that the circuit court
erred because it improperly interpreted the condominium documents, improperly
considered and applied a local ordinance on utility billing practices, and
erred when it determined that the condominium association acted improperly. Because we conclude that Zabler is entitled
to summary judgment as a matter of law, we affirm the judgment of the circuit
court.
¶2 Coachlight Village is a condominium located in New Berlin, and consists of four buildings
with four individual units. Coachlight Village
is governed by an Association, and the Association is governed by a Board of
Directors. Zabler owns a condominium
unit in Coachlight Village. Zabler brought this declaratory judgment
action against Coachight
Village alleging that the
Association had violated the Declaration and By-Laws in three respects.
¶3 First, he claimed that the Association was improperly
allocating costs for water, sewage, and salt.
When Coachlight
Village began receiving
its water from the Milwaukee Metropolitan Sewage District, the water costs
substantially increased. The Association
historically had divided the water costs into sixteen equal payments. Some residents felt that this was
unfair. At a meeting in January 2005,
the majority of owners present voted to allocate the costs for each building
among the residents of that building. As
a result, Zabler’s water costs significantly increased. Zabler argued that the Association violated
its own rules when it changed the allocation of the water costs.
¶4 Second, Zabler alleged that the Association acted improperly
when it did not pay for painting fences.
Each building in the complex is surrounded by “limited common areas”
that includes fences. The Association
repaired the fences but required that the unit owner pay for painting the
fence. Zabler argued that the painting of
the fences is a common expense, and should be shared equally by all of the
owners.
¶5 Third, Zabler had notified the Association that there were
carpenter ants around his building. The
Association responded that if there were carpenter ants, then the Association
would split the cost of extermination of the carpenter ants with the
building. Zabler again argued that this
was a common expense that should be borne entirely by the Association.
¶6 Zabler brought this declaratory judgment action alleging that
the Association had required him to pay a sum of money in excess of that
provided for by the By-Laws and Declaration. Both Coachlight Village
and Zabler moved for summary judgment.
The circuit court held a hearing, and granted summary judgment to
Zabler. Coachlight Village
appeals.
¶7 Our review of the circuit court’s grant of summary judgment
is de novo, and we use the same methodology as the circuit court. M&I First Nat’l Bank v. Episcopal Home Mgmt.,
Inc., 195 Wis.
2d 485, 496, 536 N.W.2d 175 (Ct. App. 1995).
That methodology is well known, and we need not repeat it here. Summary judgment is appropriate when there is
no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Id. at 496-97.
¶8 Coachlight Village first argues that the circuit court
improperly interpreted the condominium documents and that the court improperly
construed a City of New Berlin
ordinance when it granted summary judgment to Zabler. Specifically, it argues that the circuit
court erred when it found that the Condominium Declaration defines water, salt,
and sewage costs as common expenses.
¶9 The circuit court, in a very thorough decision, explained
that the Association is governed by Wis.
Stat. ch. 703 (2005-06),
the Association’s Declaration, and the Association’s By-Laws. The court concluded that a City of New Berlin Municipal Ordinance,
Section 276-10(a)(2), provides that billings to condominiums shall be
considered a common expense of the condominium association under ch. 703. Wisconsin Stat. § 703.02(3) provides that
common expenses are expenses of the association. The court concluded that: “Through the Ordinance, the City assured that
all multi-tenant billings, and any other Association expenses, are common
expenses” under the statute. The court
further concluded that water, salt, and sewage costs are multi-tenant billings,
and hence common expenses. The court
further found that the Declaration provided that each unit shall be liable for
an equal share of the common expenses.
Because these expenses for water, sewage, and salt are common expenses, the
court held they must be allocated equally among all the unit owners.
¶10 The court also concluded that the Declaration provides that a
majority of all condominium owners is needed to amend the Declaration. In January 2005, a majority of the owners
present, and not a majority of all owners, voted to amend the Declaration. The Declaration, therefore, was not properly
amended, and Zabler was entitled to summary judgment. We are not convinced that the circuit court improperly
considered and applied the city ordinance, and we agree with the circuit
court’s conclusion.
¶11 Coachlight
Village also argues that
the circuit court erred when it concluded that maintenance of fences was the
responsibility of the Association. Coachlight
argues that the circuit court erred when it considered limited common areas to
be a subset of “common areas.” While the
Declaration defines “limited common areas,” it does not distinguish between
common areas and limited common areas when establishing responsibility for maintenance. We agree with the circuit court that a
“limited common area” is a specific type of common area. The Declaration provides that each unit owner
shall be liable for an equal share of common expenses, and that common expenses
include the maintenance of common areas.
Because the fence is a common area, the maintenance of the fence is also
a common expense.
¶12 The circuit court also concluded that responsibility for the
maintenance of the common areas includes the responsibility for the costs
associated with carpenter ant extermination.
We again agree.
¶13 Coachlight
Village also argues that
the circuit court erred when it determined that the Association acted
improperly when it reallocated the costs.
It argues that the Association is authorized by statute to allocate
assessments and make changes in the day-to-day operations of the condominiums
without amending the Declaration. Coachlight Village further argues that the
procedure of amending the Declaration is, in essence, too cumbersome to be
practical because it requires that the unit owners get the written consent of
their mortgage-holder.
¶14 We are not convinced by Coachlight Village’s
argument. The circuit court concluded
that the Declaration provides that each unit owner is liable for an equal
portion of common expenses. We agree. When the Association decided to change the
allocation of a particular common expense so that the expense was shared
equally by the building and not equally by the unit owners, it needed to amend
the Declaration to do so. Because the
Association did not properly amend the Declaration, the Association must either
allocate the costs equally among the unit owners, or properly amend the
Declaration. For the reasons stated, we
affirm the judgment of the circuit court.
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.