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Published: July 30, 2009
Authors:
Peter Conrad and
Charles (Buck) Sweeney
Recently, in Soma v. Zurawski, No. 2008AP2300, 2009 WL 2047279 (Wis. App. July 16, 2009), the Wisconsin Court of Appeals affirmed that a circuit court may order a forced sale under its general powers of equity. The court relied heavily upon Perpignani v. Vonasek, 139 Wis. 2d 695, 408 N.W.2d 1 (1987), a case in which the Wisconsin Supreme Court upheld a forced sale based on both Wis. Stat. ch. 844 and a court's general equitable powers.
The Zurawskis placed significant permanent improvements on land they believed they owned. The improvements included a trailer, landscaping, a septic tank and a well. The Zurawskis lived on the disputed parcel for more than 15 years, learning they did not actually own the property only a few years before the lawsuit was instigated. The Somas were aware of the encroachment when they purchased the property and initially told the Zurawskis there was no problem with the use. When the Zurawskis refused to allow the Somas to hunt on their property, however, the Somas filed an action for possession of the disputed parcel.
In rendering its decision, the Wisconsin Court of Appeals went out of its way to discuss how the record amply supported the circuit court's decision. In particular the court noted that the Zurawskis had invested significant effort into the property, and forcing the Zurawskis to move the improvements would cost over twice the value of the land. There was no indication that the land was particularly valuable to the Somas. As such, and given that "courts may apply equitable remedies as necessary to meet the needs of a particular case," Perpignani at 736-37 (quoting Prince v. Bryant, 87 Wis. 2d 662, 674, 275 N.W.2d 676 (1979)), the circuit court's decision to force the sale of the disputed property to the Zurawskis was equitable and proper.
Charels V. (Buck) Sweeney is a partner at Axley Brynelson, practicing in the areas of environmental law and construction law. Peter J. Conrad is an attorney in the firm, practicing in the areas of construction law, real estate, land use and municipal law. For more information on forced sale of property in Wisconsin, please contact Mr. Sweeney at 608.283.6743 or csweeney@axley.com, or Mr. Conrad at 608.260.2483 or pconrad@axley.com. Thanks to Axley Brynelson law clerk Emily Buchholz for her assistance in writing this article.
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