703.165 Lien for unpaid common expenses, unpaid damages, and unpaid penalties.

(1) Definition. In this section, “assessments" means regular and special assessments for common expenses and charges, fines, or assessments against specific units or unit owners for damages to the condominium or for penalties for violations of the declaration, bylaws, or association rules.

(2) Liability for assessments. A unit owner shall be liable for all assessments, or installments thereof, coming due while owning a unit, including any assessments coming due during the pendency of any claim by the unit owner against the association or during any period in which the unit is not occupied by the unit owner or is leased or rented to any other person. In a voluntary grant, the grantee shall be jointly and severally liable with the grantor for all unpaid assessments against the grantor for his or her share of the common expenses up to the time of the voluntary grant for which a statement of condominium lien is recorded, without prejudice to the rights of the grantee to recover from the grantor the amounts paid by the grantee for such assessments. Liability for assessments may not be avoided by waiver of the use or enjoyment of any common element or by abandonment of the unit for which the assessments are made.

(3) Assessments constitute lien. All assessments, until paid, together with interest on them and actual costs of collection, constitute a lien on the units on which they are assessed, if a statement of lien is filed within 2 years after the date the assessment becomes due. The lien is effective against a unit at the time the assessment became due regardless of when within the 2-year period it is filed. A statement of condominium lien is filed in the land records of the clerk of circuit court of the county where the unit is located, stating the description of the unit, the name of the record owner, the amount due and the period for which the assessment was due. The clerk of circuit court shall index the statement of condominium lien under the name of the record owner in the judgment and lien docket. The statement of condominium lien shall be signed and verified by an officer or agent of the association as specified in the bylaws and then may be filed. On full payment of the assessment for which the lien is claimed, the unit owner shall be entitled to a satisfaction of the lien that may be filed with the clerk of circuit court.

(4) Statement. Any grantee of a unit is entitled to a statement from the association or the executive board, setting forth the amount of unpaid assessments against the grantor. The grantee is not liable for, nor shall the unit conveyed be subject to a lien that is not filed under sub. (3) for, any unpaid assessment against the grantor in excess of the amount set forth in the statement. If an association or a board of directors does not provide such a statement within 10 business days after the grantee's request, they are barred from claiming under any lien that is not filed under sub. (3) prior to the request for the statement against the grantee.

(5) Priority of lien. A lien under this section is prior to all other liens except the following:

(a) Liens of general and special taxes.

(b) All sums unpaid on a first mortgage recorded prior to the making of the assessment.

(c) Construction liens filed prior to the making of the assessment.

(d) All sums unpaid on any mortgage loan made under s. 45.80, 1989 stats.

(e) A lien under s. 292.31 (8) (i) or 292.81.

(6) Interest on unpaid assessment. Any assessment, or installment thereof, not paid when due shall bear interest, at the option of the association, from the date when due until paid at a rate not exceeding the highest rate permitted by law as stated in the bylaws.

(7) Enforcement of lien. A lien may be enforced and foreclosed by an association or any other person specified in the bylaws, in the same manner, and subject to the same requirements, as a foreclosure of mortgages on real property in this state. An association may recover costs and actual attorney fees. An association may, unless prohibited by the declaration, bid on the unit at foreclosure sale and acquire, hold, lease, mortgage and convey the unit. Suit to recover a money judgment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing the same. Suit for any deficiency following foreclosure may be maintained in the same proceeding. No action may be brought to foreclose the lien unless brought within 3 years following the recording of the statement of condominium lien. No action may be brought to foreclose the lien except after 10 days' prior written notice to the unit owner given by registered mail, return receipt requested, to the address of the unit owner shown on the books of the association.

(8) Form of statement of condominium lien. A statement of condominium lien is sufficient for the purposes of this chapter if it contains the following information and is substantially in the following form:

Statement of Condominium Lien

This is to certify that .................... owner(s) of unit No. ..... in .................... Condominium (is) (are) indebted to the association in the amount of $.......... as of .........., .... (year) for (his) (her) (its) (their) (proportionate share of common expenses of the Condominium) (damages to the condominium) (penalties for violation of condominium declaration, bylaws, or rules) for the period from (date) to (date), plus interest thereon at the rate of ....%, costs of collection, and actual attorney fees.

Association

By: ..........................

Officer's title (or agent)

Address

Phone number

I hereby affirm under penalties of perjury that the information contained in the foregoing Statement of Condominium Lien is true and correct to the best of my knowledge, information, and belief.

...............................

Officer (or agent)

History: 2003 a. 283 ss. 31, 34; 2003 a. 326; 2017 a. 333; 2017 a. 365 s. 111.

NOTE: 2003 Wis. Act 283, which affected this section, contains extensive explanatory notes.

A condominium land contract recorded before the making of an assessment lien has priority as a first mortgage under former s. 703.16 (6) (b) [now sub. (5) (b)]. Towne Realty, Inc. v. Edwards, 156 Wis. 2d 344, 456 N.W.2d 651 (Ct. App. 1990).

In a foreclosure action under former s. 703.16 (8) [now sub. (7)] based on a failure to pay condominium fees, s. 846.10 (1) could not be applied sensibly to require a statement of installments to become due because monthly assessments were in varying amounts. The 12-month redemption period under s. 846.10 (2) is applicable to such foreclosures. Geneva National Community Association, Inc. v. Friedman, 228 Wis. 2d 572, 598 N.W.2d 600 (Ct. App. 1999), 98-1010.

Sub. (5) (b) does not mean that the first mortgage recorded is the only mortgage lien superior to a condominium lien when the terms of the first recorded mortgage clearly stated that it was subordinate to another mortgage and the condominium lien was recorded after both mortgages. Sub. (5) (b) states that “a" first mortgage recorded prior to a condominium assessment is the only mortgage lien superior to a condominium lien. The statute does not say “the" first mortgage recorded prior to a condominium assessment is the only mortgage lien that is superior to a condominium lien. U.S. Bank, N.A., v. Landa, 2011 WI App 135, 337 Wis. 2d 179, 804 N.W.2d 835, 10-0303.

The language in sub. (2) pertaining to voluntary grants of property has no bearing on an involuntary grant, such as a sheriff's sale. In this case, the foreclosure judgment forever barred and foreclosed all right and interest of the condominium association in and to the property. A condominium association policy could not survive a foreclosure action to the extent it restricts a current owner's use of condominium facilities based on the failure of the prior owners to pay their debts. Such a policy ties the debts of the prior owners to the units, in violation of well-established foreclosure law. Walworth State Bank v. Abbey Springs Condominium Association, Inc. 2016 WI 30, 368 Wis. 2d 72, 878 N.W.2d 170, 14-0940.