703.19 Eminent domain.

(1) Definition. In this section, “taking under the power of eminent domain" includes any sale in settlement of any pending or threatened condemnation proceeding.

(2) Allocation of award; provisions in declaration or bylaws. A declaration or bylaws may provide for an allocation of any award for a taking under the power of eminent domain of all or part of the condominium. A declaration or bylaws also may provide for:

(a) Reapportionment or other change of the percentage interests appurtenant to each unit remaining after any taking; and

(b) Rebuilding, relocation or restoration of any improvements so taken in whole or in part.

(3) Allocation of award; in absence of provisions in declaration or bylaws. Unless otherwise provided for in a declaration or bylaws, any damages for a taking of all or part of a condominium shall be awarded as follows:

(a) Every unit owner is entitled to the entire award for the taking of all or part of their respective unit and for consequential damages to their unit.

(b) Any award for the taking of limited common elements shall be allocated to the unit owners of the units to which the use of those limited common elements is restricted in proportion to their respective percentage interests in the common elements.

(c) In the event no reconstruction is undertaken, any award for the taking of common elements shall be allocated to all unit owners in proportion to their respective percentage interests in the common elements.

(4) Reconstruction following taking. Following the taking of all or a part of the common elements, an association shall promptly undertake to restore the improvements of the common elements to an architectural whole compatible with the existing structure. Any costs of such restoration in excess of the condemnation award shall be a common expense. However, if the taking under the power of eminent domain is to the extent where the remaining condominium portion has been diminished to the extent that reconstruction or restoration is not practical, a condominium shall be subject to an action for partition upon obtaining the written consent of the unit owners having 75 percent or more of the vote. In the case of partition, the net proceeds of sale, together with any net proceeds of the award for taking, shall be considered as one fund and shall be divided among all unit owners in proportion to their percentage interest in the common elements and shall be distributed in accordance with the priority of interests in each unit.

(5) Adjustment of percentage interests following taking; effect of taking on votes appurtenant to unit. Following the taking of all or a part of any unit, the percentage interests appurtenant to the unit shall be adjusted in proportion as provided in the condominium instruments or bylaws. The association promptly shall prepare and record an amendment to the declaration reflecting the new percentage interests appurtenant to the unit. Subject to sub. (7), following the taking of part of a unit, the votes appurtenant to that unit shall be appurtenant to the remainder of that unit, and following the taking of all of a unit, the right to vote appurtenant to the unit shall terminate.

(6) Priority in distribution of damages for each unit. All damages for each unit shall be distributed in accordance with the priority of interests at law or in equity in each respective unit.

(7) Taking not to include percentage interests or votes. A taking of all or part of a unit may not include any of the percentage interests or votes appurtenant to the unit.

(8) Preservation of the right of appeal. The owner of each unit taken may appeal the necessity of the taking and the condemnation award made for the taking. A unit owner may appeal the necessity of the taking, and the condemnation award made for the taking, of the owner's interest in the common elements. The unit owners having an interest in the ownership of limited common elements may individually or as a group appeal the necessity of the taking or the condemnation award made for the taking of the limited common elements.

History: 1977 c. 407; 2003 a. 283, 326.

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