APPLE VALLEY GARDENS ASS'N v. MacHutta

2007 WI App 270, 743 N.W.2d 483
CourtCourt of Appeals of Wisconsin
DecidedNovember 28, 2007
Docket2007AP191
StatusPublished

This text of 2007 WI App 270 (APPLE VALLEY GARDENS ASS'N v. MacHutta) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
APPLE VALLEY GARDENS ASS'N v. MacHutta, 2007 WI App 270, 743 N.W.2d 483 (Wis. Ct. App. 2007).

Opinion

743 N.W.2d 483 (2007)
2007 WI App 270

APPLE VALLEY GARDENS ASSOCIATION, INC., Plaintiff-Respondent,[†]
v.
Gloria MacHUTTA and Steven MacHutta, Defendants-Appellants.

No. 2007AP191.

Court of Appeals of Wisconsin.

Submitted on Briefs October 11, 2007.
Opinion Filed November 28, 2007.

*484 On behalf of the defendants-appellants, the cause was submitted on the briefs of Randall L. Nash, Esq., of O'Neil, Cannon, Hollman, DeJong, S.C., of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Mathew R. Jelenchick, and Brian A. Romans, of Niebler, Pyzyk, Klaver & Carrig, L.L.P., of Menomonee Falls.

BROWN, C.J., ANDERSON, P.J., and NETTESHEIM, J.

¶ 1 NETTESHEIM, J.

Apple Valley Gardens Association, Inc., a condominium owners' association, sued spouses Steven and Gloria MacHutta to enforce an amended bylaw requiring owner occupancy relative to a unit owned by Gloria. On cross-motions for summary judgment, the trial court ruled in favor of the Association and against the MacHuttas. On appeal the MacHuttas contend that (1) the bylaw amendment is unenforceable because WIS. STAT. § 703.09(1)(g) (2005-06)[1] requires that all use restrictions be recorded in the condominium declaration; (2) such rental restrictions make the title unmarketable, in violation of WIS. STAT. § 703.10(6) and Bankers Trust Co. of Cal., N.A. v. Bregant, 2003 WI App 86, 261 Wis.2d 855, 661 N.W.2d 498; and (3) the bylaw amendment violates the parties' 1988 settlement agreement which, the MacHuttas assert, specifically granted them rental privileges.

¶ 2 We disagree. We conclude that WIS. STAT. § 703.10(3) expressly permits use restrictions to be in the bylaws, that the restrictions do not violate § 703.10(6), and that because the 1988 agreement addressed only Steven's right to rent his unit, the owner occupancy amendment is enforceable against Gloria. We therefore affirm.

BACKGROUND

¶ 3 The history is somewhat lengthy but the parties maintain, as they have throughout, that the material facts are undisputed. Apple Valley Gardens condominium and its owners' association were established in 1979. Steven MacHutta owns Unit 2-110; Gloria owns Unit 2-206. Steven was the condominium's builder, developer, declarant and incorporator. The recorded declaration provided in part:

8. PURPOSE-RESTRICTION ON USE. The buildings and each of the units are intended for the purpose of single family residential use only and are restricted to that use. Any lease or oral or written rental agreement shall not relieve an owner from his [or her] obligation to pay common expenses or any other obligations imposed upon unit owners by this Declaration.

(Emphasis added.)

¶ 4 In 1988, Steven and Gloria owned fifteen units which they leased to tenants. *485 Concerned about the number of leased units and the MacHuttas' disproportionate voting control, the Association sought in earlier litigation to compel the MacHuttas to sell the units. The parties resolved the conflict through a settlement agreement ("the 1988 agreement"), under which Steven agreed to make diligent efforts to promote sales of the units and to retain no more than four of the fifteen units. The 1988 agreement, with asterisks and alterations in font size reproduced as in the original, provided in relevant part:

1. STEVEN A. MACHUTTA shall immediately begin to sell, through reasonable efforts, the 15 condominium units he owns at Apple Valley Gardens Condominiums. . . . Steven A. Machutta shall be precluded from renting or leasing said units, whether by then outstanding leases, extensions, renewals or otherwise, on and after September 1, 1990, unless he is able to prove to the satisfaction of the Court . . . that he has undertaken reasonable efforts to sell said units. In no event and under no circumstances shall STEVEN A. MACHUTTA be allowed to rent or lease any of the Units on or after September 1, 1991. Nothing herein shall be construed to preclude STEVEN A. MACHUTTA from retaining one Unit for his personal use or occupancy,* nor to preclude STEVEN A. MACHUTTA from gifting or transferring any of the Units to four immediate family members, provided that the purposes of this provision relative to the lease or rental of the Units is not so frustrated. *including all rights incidental to said use and occupancy, including but not limited to the right to rent said Unit.**
. . . .
3. In the event the present rental agreements or leases for the Units now rented by STEVEN A. MACHUTTA are terminated for any reason, STEVEN A. MACHUTTA shall be entitled to enter into further rental or lease agreements for such Units only upon terms which comply with sections 9.1-9.3 of the Apple Valley Gardens Condominium By-laws, as amended. Any such further rental or lease agreement shall further provide that the rental or lease may be terminated upon the sale of the Unit. Nothing in this paragraph shall be construed to contradict the requirements of paragraph 1 herein.
** It is the intention of the parties that STEVEN A. MACHUTTA and his immediate family and/or his business interest shall own no more than four (4) total units if said units are not sold to third-parties and are retained or transferred to family members.

Gloria did not own Unit 2-206 at the time of the 1988 agreement.

¶ 5 In December 2002, the Association voted by more than two-thirds to amend the bylaws to prohibit the rental of any units as of January 1, 2003. Existing leases, including one to a tenant in the unit Gloria then owned, were grandfathered in. The owner occupancy bylaw amendment provides in part:

Article VI, ¶ 6.1:
j. Owner occupied.
i. Effective January 1, 2003, all units are required to be owner occupied. No residential unit owner shall rent, lease or otherwise so demise any residential unit or any part therein. Owners shall not permit the use of said unit by any party other than owner or owner's immediate family member.
ii. An owner's observance of and performance under a rental agreement, lease, or other instrument granting occupancy in a residential unit in effect as of December 18, 2002, shall not be a violation of *486 this subparagraph (j). . . . . When the existing tenants . . . vacate their respective units, said units shall become owner occupied under this subparagraph (j), irrespective of the effective date of the rental agreement, lease, or other instrument granting occupancy in a residential unit.

The voting membership also duly amended Article IX, ¶ 9.1, "Consent for Transfer or Lease." The amended ¶ 9.1 required the board of directors' written consent to renew or extend any lease or rental agreement, but expressly provided that the amendment did not "displace, limit, restrict or otherwise compromise the rules and regulations under Article VI, paragraph 6.1, subparagraph (j) . . .", the December 2002 amendment barring rental or leasing of units effective January 1, 2003.

¶ 6 In August 2004, Gloria's tenant vacated Unit 2-206. The MacHuttas submitted for the board's approval a prospective tenant's lease application and credit report, which the board formally rejected based on the bylaw amendment requiring owner occupancy. When Gloria proceeded to rent Unit 2-206 to the new tenant anyway, the board's attorney advised the MacHuttas that the lease violated Association bylaws.

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Apple Valley Gardens Ass'n v. MacHutta
2007 WI App 270 (Court of Appeals of Wisconsin, 2007)

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Bluebook (online)
2007 WI App 270, 743 N.W.2d 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apple-valley-gardens-assn-v-machutta-wisctapp-2007.