Legal Action Program Cases
See landmark legal victories from the WRA Legal Action Program.
CURRENT CASES
Court Decides STR Ordinance is Void and Unenforceable
Current status: Wisconsin Court of Appeals District II held the ordinance was void and unenforceable because the Village failed to follow required zoning procedures. WRA filed an amicus brief.
In Wildwood Estate, LLC v. Village of Summit, the Village of Summit’s enactment of its short-term rental ordinance using its police powers rather than through the property zoning ordinance procedures is a misuse of police powers, rendering the ordinance void and unenforceable.
Court Confirms the WRA’s Right to Sue, Strikes Down Illegal Ordinance
Current status: Wisconsin Court of Appeals (District II) ruled that the WRA had standing, the legal right, to bring the case, and that the ordinance violated state law.
In WRA v. City of Neenah, the Wisconsin Court of Appeals (District II) ruled that the WRA had standing, the legal right, to bring the case. The court also ruled that the ordinance conflicted with Wisconsin’s Right to Rent law (Wis. Stat. § 66.1014) by requiring short-term rental (STR) properties to be the primary residence of the applicant. The court recommended the decision for publication, making it binding on future lower court rulings.
Validity of Housing Authority’s Residential Leases
Current status: The case is being briefed in Court of Appeals District I. The WRA as part of a coalition, filed an amicus brief.
In Merrill Park LLC v. Party Sealed by Judge Morales-42, a Milwaukee circuit court judge held based on the Koble Investments decision, that the abandonment clause in the Housing Authority of the City of Milwaukee’s lease agreement violated Wis. Stat. 704.44, thus permitting a tenant to be entitled to double damages (for paid and unpaid rents), costs and fees.
Validity of Wisconsin Residential Leases
Current status: The case has been accepted by the Wisconsin Supreme Court. The WRA as part of a coalition, filed an amicus brief.
In Koble Investments v. Marquardt, District III of the Wisconsin Court of Appeals held that a landlord’s simple omission of the ‘Notice of Domestic Abuse Protections’ required by Wis. Stat. § 704.14 invalidated the lease with a tenant. This omission allowed the tenant to recover twice the amount of rent paid under the lease, in addition to other damages, following the landlord’s attempt to evict the tenant.
Short-term Rental Ordinance Challenge Village of Ephraim
Current status: Case is currently in briefing at the circuit court.
In WRA v. Village of Ephraim, the ordinance violates Wis. Stat. § 66.1014 by requiring residency in the county, discretion by the Village Administrator to enter the property, or installation of a knox box.
Short-term Rental Ordinance Challenge Columbia County
Current status: Ordinance was changed, after legal challenge by the WRA.
In WRA v. Columbia County, the ordinance violated Wis. Stat. § 66.1014 by limiting the number of occupants to 8 regardless of the number of bedrooms.
Court Upholds Two-year Liability Limit for Real Estate Licensees
Current status: Wisconsin Court of Appeals District II upheld the statute barred all claims after two years. The WRA filed an amicus brief.
In Hanetti Properties LLC, v. Alissa Traughber, Wis. Stat. § 452.142 establishes a two-year limitation on all legal actions, including contribution, against real state firms and licensees associated with the firm relating to brokerage services.
Court Affirms Two-year Liability Cap for Licensees
Current status: Wisconsin Court of Appeals District II upheld the statute barred all claims after two years. The WRA filed an amicus brief.
In James Eddings v. The Estate of Donna M. Young, Wis. Stat. § 452.142 imposes a two-year window for legal action related to brokerage services, starting from one of three key triggers, including the transaction’s closing. Plaintiffs sought to extend liability beyond two years, but the Court of Appeals affirmed that all claims are barred after that period.
Prohibiting Alienation of Property Ordinances Challenge
Current status: On appeal.
In WRA v. Polk County, the WRA is challenging various Polk County ordinances placing prohibitions or unreasonable restrictions on real property owners from alienating an interest in real property violates Wis. Stat § 700.28.
U.S. Supreme Court Affirms Government Cannot Keep Owner’s Surplus from Tax Foreclosure
Current status: Unanimous decision in favor of Tyler on May 25, 2023, United States Supreme Court.
In Tyler v. Hennepin County(Minnesota), on May 25, 2023, the United States Supreme Court ruled unanimously ruled against Hennepin County, Minnesota in a striking win for property rights. This ruling is a huge win for property owner, Geraldine Tyler, and all property owners throughout the nation. This win also highlights the importance of the WRA’s advocacy work in the courts via the Legal Action Program.
Seller Liability and Legal Liability of Commonly Owned Legal Entities
Current status: Decided by the Wisconsin Supreme Court. The WRA filed an amicus brief.
In Pagoudis v. Keidl, the Court determined that sellers should not be held liable to subsequent buyers on information in a real estate condition report a seller provided in a previous transaction, and that commonly owned limited liability companies (LLCs) should be treated as separate entities.
In 2017, Louis Pagoudis (Louis) wrote an offer to purchase on a property as “Louis or assigns” on the Keidl’s 20 acre of land which included a house, farmland and a building site for a pole barn. Sead Properties, LLC (Sead) closed on the property on April 24, 2017. In October 2017, Sead transferred the property to Kerns Management, LLC (Kerns). Louis owns and operates both Sead and Kerns. In August 2019, Sead, Kerns and Louis filed a lawsuit against Keidl for misrepresentation among other things.
The consequence of the court of appeals decision would arguably subject sellers to indefinite liability even when the seller has no contractual relationship with the party. Furthermore, the majority of Wisconsin LLCs are single member entities and many individuals have more than one LLC for liability purposes, therefore, the court’s decision to allow commonly owned LLCs to be treated as separate entities would have had far-reaching consequences on Wisconsinites throughout the state.
On April 4, 2023, the Wisconsin Supreme Court dismissed the case against Louis and Kerns and remanded the case back to the lower court regarding Sead’s rights against Keidl.
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Time of Sale Ordinance Challenge Manitowoc County
Current status: Ordinance was modified after legal challenge by the WRA.
In WRA v. Manitowoc County, the ordinance required a full Private Onsite Wastewater Treatment Systems (POWTS) inspection after transfer of property violates Wis. Stat. § 706.22. While the County amended the ordinance to no longer prohibit occupancy if there is not a time-of-sale POWTS inspection.
Short-term Rental Ordinance Challenge Town of Rib Mountain
Current status: Ordinance was changed after legal challenge by the WRA.
In WRA v. Town of Rib Mountain, the Ordinance required short-term rentals to be owner-occupied for a certain number of days violates Wis. Stat. § 66.1014.
DNR’s Unilateral Redefinition of Project Purpose
Current status: On appeal. The WRA filed an amicus brief.
In Herold v. Wisconsin Department of Natural Resources (DNR), the DNR is arbitrarily and capriciously applying practicable alternatives standard to render a property owner’s reasonable and valid property development objectives a nullity, a result which would allow the DNR to unilaterally re-define the project purpose for any type of development to justify denying a permit.
FEATURED CASES
Through the WRA Legal Action Program, we’ve championed critical property rights and real estate issues that impact Wisconsin property owners and businesses. By filing amicus briefs, providing legal expertise or taking direct action in court, these pivotal cases highlight our dedication to protecting your interests.
Waterfront Property Rights
David J. & Diane Lobermeier v. Jerome & Gail Movrich
A dispute over placing piers on a privately owned flowage bed sparked a legal battle, leaving many Wisconsin waterfront property owners without pier rights — until new legislation restored their access.
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David Lobermeier and his wife own land beneath the waters of Sailor Creek Flowage. Originally, the flowage was a creek, but the city obtained the rights to build a dam and flood the area in the 1940s, which resulted in the flowage. The property next to this flowage was then divided, and waterfront lots were sold off to be a part of the Sailor Creek Flowage Subdivision.
Lobermeier sister, Gail Movrich, purchased one of those waterfront lots in the subdivision. For years, Movrich and her husband as well as the other waterfront property owners placed seasonal piers, which sat on the Lobermeier-owned bed of the flowage.
At some point, a dispute erupted between the Movriches and the Lobermeiers. The Lobermeiers demanded the Movriches and other property owners remove the piers and discontinue using the water for recreational purposes.
In retaliation, the Movriches sued. They argued that they, as waterfront property owners, had an inherent right to use and access the water next to their property, as demonstrated by Wisconsin court cases for over 140 years.
The Lobermeiers argued the Movriches did not have the right to place a pier in the flowage because the Lobermeiers owned the bed of the flowage, and the Movriches would be tresspassing when placing a pier on privately owned land.
The circuit court and Court of Appeals agreed with the Movriches, affirming that waterfront property owners have the right to place a pier in navigable waterways adjacent to their property unless the deed to the property explicitly prohibits them from doing so.
In a 4-3 decision, the Wisconsin Supreme Court overturned the lower court decisions and ruled in favor of the Lobermeiers. The court held that the waterfront property owners adjacent to a flowage with a privately owned bed do not have the right to place a pier on the bed unless their deed explicitly allows them to do so. In other words, the owners of a flowage bed are like any other property owner and can prohibit others from trespassing on their property by walking or placing a structure on it.
Since the Movriches’ deed did not explicitly allow them to place a pier on the Lobermeiers’ property, the court concluded that they did not have pier rights. Therefore, the court ordered the Movriches to remove their pier.
However, the court’s ruling did not impact only the Movriches; it applied to all waterfront property owners on flowages throughout Wisconsin. Thousands of waterfront property owners and businesses were told they no longer had pier rights despite paying property taxes on their property for years as if they did have such rights.
This issue led to the creation of 2021 Wis. Act 47. This act restores the pier rights of waterfront property owners adjacent to flowages and protects the pier rights of all waterfront property owners in Wisconsin regardless of the type of body of water. Therefore, the Movriches ultimately won in the end.
Learn More:
Link to Wisconsin Supreme Court Case
Link to Amicus Brief
Property Taxes and Land Classification
Peter Ogden Family Trust of 2008 v. Board of Review for the Town of Delafield
Does land need a “business purpose” to be classified as agricultural for tax purposes? A legal challenge clarified the definition of agricultural land and set the record straight.
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Since 2012, the Ogden family has owned two lots of land: one 4.46 acres and the other 7.76 acres. From 2012 to 2015, these lots were classified as agricultural land with an assessed value of $17,100 for tax purposes. However, the lots were reclassified as residential in 2016, and the assessed value jumped to $886,000.
The Ogdens disagreed with the new assessment and took the case to the Town of Delafield Board of Review. The Ogdens argued that their lots should still be considered agricultural land because the family used the land to harvest apples, alfalfa and Christmas trees. A local farmer, Lloyd Williams, also testified that had farmed the lots since 2012 with the Ogdens, and the field in question produced approximately 450 bales of hay.
The assessor disagreed and disputed that the land should not be deemed agricultural land because it was not being used for business purposes as the Ogdens did not sell any of the harvest. The assessor was wary that the Ogdens were trying to take advantage of loopholes in the agricultural use classification and its considerably smaller tax rate.
After hearing arguments, the board vote ended in a tie, which sustained the assessor’s original classification of the Ogdens' lots as residential land.
The Ogdens appealed to the Waukesha Circuit Court, but the petition was dismissed. Nevertheless, the Court of Appeals decided to take the case up and reversed the Town of Delafield Review Board’s decision, stating that a business purpose was not necessary for the land to be classified as agricultural land for property tax purposes. In response, the town board appealed to the Wisconsin Supreme Court.
The Wisconsin Supreme Court sided with the Ogdens, stating the board erred when it determined that agricultural land for property tax purposes is required to have a business purpose.
- The statute in question, Wis. Stat. § 70.32(2)(c)1g, defines agricultural land to mean “land, exclusive of buildings and improvements and the land necessary for their location and convenience, that is devoted primarily to agricultural use.”
- Agricultural use pertains to activities such as growing Christmas trees, apples and hay — activities the Ogden had participated in for many years.
- The statutes do not require an agricultural use to have a business purpose.
After the court determined the lots should be classified as agricultural land, the court passed the reins to the town board to re-determine the value.
The Wisconsin Supreme Court ruling affirmed that land can be deemed agricultural land regardless of whether the agricultural use generates any economic benefit to the owner.
Learn More:
Link to Wisconsin Supreme Court Case
Link to Amicus Brief
Property Rights and Regulatory Takings
Murr v. Wisconsin
The Murr family challenged a local ordinance that merged their two adjacent lots, preventing the family from selling a single lot. The Murrs' efforts led to Wisconsin’s "Homeowners Bill of Rights," protecting property owners in similar situations.
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In the 1960s, the Murr family purchased two separate but adjacent lots on the St. Croix River in western Wisconsin. On one parcel purchased in 1960, the family built a cabin it has enjoyed for decades. The other parcel, purchased in 1963, remained undeveloped for decades.
In 1975, 12 years after the family purchased the second lot, St. Croix County enacted an ordinance that essentially meant the Murr family could no longer sell the undeveloped lot by itself. According to the ordinance, development or sale of adjacent, substandard lots under common ownership is prohibited unless each has at least one acre; otherwise, the lots are merged into a single, buildable lot. Neither of the two lots owned by the Murr family were at least one acre.
In order to improve their existing cabin on the one parcel, the Murrs planned to sell the undeveloped lot and use the revenue from the sale to renovate their cabin. Because the Murrs purchased both lots more than a decade before the 1975 ordinance, they expected to be grandfathered in. When the Murrs requested a variance, the application was denied.
In response, the Murrs filed a lawsuit claiming the ordinance constituted a “regulatory taking” of their land in violation of the U.S. Constitution’s takings clause:
- A regulatory taking occurs when governmental regulations limit the use of private property, effectively depriving the landowner of all economically reasonable use or value of their property. The Murr family expected to sell the undeveloped lot for approximately $400,000, but the regulatory taking by St. Croix County thwarted that plan.
- The takings clause is a provision in the Fifth Amendment of the U.S. Constitution. That clause states that private property "shall not be taken for public use without just compensation.”
The circuit court rejected the Murrs’ takings claim, and on appeal, the Wisconsin Court of Appeals affirmed the circuit court’s decision. The Wisconsin Supreme Court declined to hear the case, but the U.S. Supreme Court agreed to take the case.
The Murrs argued was the government prevented them from selling their property, which was the second undeveloped parcel in this case. “If you can’t sell it or build on it, it’s a taking of the property,” said Mike Murr, one of the siblings who owned the family property.
The State of Wisconsin and St. Croix County argued that the two parcels — less than one acre each — became one property when the siblings took over the property from their parents.
The Supreme Court looked to the contiguity and common ownership of the substandard parcels and treated the separate parcels as one unit of property, adopted a multifaceted test for regulatory takings, and ruled against the property owner; in this case, the Murr family.
Ultimately, the Murrs' stand for property rights was rewarded — but not by the courts. While the Supreme Court ruled against them, the Murrs' work with the WRA led to the passage of new legislation designed to ensure this issue didn’t affect other property owners.
The "Homeowners Bill of Rights" legislation, 2017 Wis. Act 67, protects the ability of property owners to develop and sell existing substandard lots adjacent to their property that were legal when they were created but do not meet current lot size requirements.
Learn More:
Link to Legislative Action
Link to Amicus Brief
Link to United States Supreme Court Decision