703.093 Alternative procedure for amending declaration.
(1) As an alternative to s. 703.09 (2), a condominium declaration may be amended under this section if at least two-thirds of the aggregate of the votes established under s. 703.09 (1) (f), or a greater percentage if provided in the declaration, consent to the amendment in writing and those consents are approved by the mortgagees or holders of equivalent security interests in the units. An amendment becomes effective when it is recorded in the same manner as the declaration.
(2) The association has 180 days to secure the required consents and approvals under this section, commencing with the recording of an affidavit with the register of deeds of the county in which the condominium is located. The affidavit shall do all of the following:
(a) Set forth the text of the proposed amendment.
(b) Provide the name and address of the senior executive officer of the association to whom inquiries should be directed with regard to the proposed amendment.
(c) State that a notice was sent to each owner of record and each lender of record for each unit of the association on the date the affidavit is recorded.
(d) Be signed by the senior executive officer of the association.
(3) Notice of a proposed amendment to a declaration under this section shall be mailed on the date the affidavit is recorded under sub. (2) to the owner of each condominium unit and to any mortgagee of, or holder of an equivalent security interest in, each unit, as identified in a title report prepared on the date the notice is sent.
(4) The notice mailed under sub. (3) shall do all of the following:
(a) Contain a copy of the text of the proposed amendment and a current copy of this section.
(b) Include a written ballot to be signed by the unit owner, identifying the unit casting the ballot and identifying each owner of record of that unit as of the date the affidavit is recorded under sub. (2). The ballot shall include a place for any mortgagee or equivalent security interest holder to whom notice is sent under sub. (3) to indicate its approval or objection under sub. (5) (b).
(c) State that, if more than one person is an owner of the unit and the owners cannot agree how to cast the ballot, the unit's vote shall be treated as a vote in opposition to the proposed amendment.
(d) State that a ballot signed by only one owner shall count as the ballot of that unit, unless more than one ballot is received by the association for that unit, in which case all ballots received for that unit must concur in the vote cast or the ballots, collectively, shall be treated as a vote in opposition to the proposed amendment by that unit.
(e) State that the proposed amendment must be voted on as written and that no changes to the proposed amendment may be accomplished by this vote.
(f) Include the address to which the completed ballot should be mailed or delivered.
(5)
(a) The owner of each unit shall vote on the proposed amendment by signing the ballot before a notary public and by mailing the signed and notarized ballot or by personally delivering it to the association of unit owners at the applicable address specified under sub. (4) (f).
(b) Each mortgagee or equivalent security interest holder receiving the notice under sub. (3) shall signify its approval or objection to the amendment by having an authorized person sign the ballot before a notary public and by returning the signed, notarized ballot to the association.
(6) The association may rely on the list of owners of record set forth in a title report obtained as of the date the affidavit is recorded under sub. (2), unless the association receives a written notice, signed and notarized by both the previous owner and the new owner, advising the association that ownership of the unit has changed. The association shall send a copy of the notice under sub. (3) to the new owner of a unit and any mortgagee or equivalent security interest holder promptly after receiving notice of the transfer of ownership. It is the responsibility of the new unit owner to comply with this section. If the previous owner had voted prior to the change in ownership, the new owner may execute the ballot included in the notice under sub. (3), which ballot, when returned by the new owner, shall supersede and replace any ballot cast by the previous owner if the required approval of any mortgagee or equivalent security interest holder is also timely received. The 180-day period applicable to receipt of the ballot for the unit shall be extended to a date 14 days after the ballot is mailed by the association if the ballot is mailed within 14 days before the end of the 180-day period.
(7) Any person acquiring a mortgage or equivalent security interest on a unit after the affidavit is recorded under sub. (2) may notify the association in writing of the mortgage or equivalent security interest lien, identifying the unit on which it holds a lien, and signify its approval of or objection to the proposed amendment to the declaration.
(8) If the association receives the required number of consents and approvals from unit owners and mortgagees and equivalent security interest holders within the required time after the affidavit is recorded under sub. (2), the senior executive officer of the association shall record an amendment in the office of the register of deeds of the county in which the condominium is located, setting forth the facts satisfying the requirements of this section and providing record notice to all interested persons that the declaration has been revised, effective upon the recording of the amendment, and restating the entire declaration, as amended.
(9) The association shall, for a period of 2 years following the recording of the amended declaration under sub. (8), retain on file and make available for inspection at the place where the condominium financial records are maintained all of the following:
(a) The title report under sub. (6) relied upon by the association.
(b) All of the ballots received by the association from unit owners.
(c) All written approvals or objections received by the association from mortgagees and equivalent security interest holders.
History: 2003 a. 283.
NOTE: 2003 Wis. Act 283, which affected this section, contains extensive explanatory notes.
The doctrine of merger of title that: “No man can, technically, be said to have an easement in his own land. And the consequence is, that if the same person becomes owner in fee simple of both estates, the easement is extinguished," did not apply to extinguish easements created in a condominium declaration. Creation of a condominium is, by statute, a unilateral act by the owner in anticipation of a future sale. It does not involve any transfer of rights to a third party and does not create any new rights that can immediately merge back into the fee. Rather, it is a document defining rights to be sold in the future. Anderson v. Quinn, 2007 WI App 260, 306 Wis. 2d 686, 743 N.W.2d 492, 06-2462.