Legal Action Program
Established in 1978 to support Wisconsin REALTORS® and landowners involved in legal matters, the WRA Legal Action Program participates in the method most advantageous to achieve the best possible outcome for the real estate industry.
Generally, the Legal Action Program participates in cases that have already been tried in circuit court and are on appeal. Cases may include, but are not limited to, actions involving real estate law and practice, land use or environmental issues, private property rights or development rights.
The cases must involve issues of significance to Wisconsin REALTORS®, property owners, or the real estate industry.
HOW CAN WE HELP?
Whether you are a REALTOR®, an attorney or property owner, the WRA’s Legal Action Program can help in a variety of ways including litigation in all levels of the court system as well as quasi-judicial administrative proceedings.
The WRA has been involved in the court system, educating judges and justices about Wisconsin legal matters that impact the practice of real estate, the ownership and use of real estate, private property rights, and other matters important to REALTORS® and the real estate industry.
Need help finding legal counsel? The WRA will help identify specialized attorneys in the field that have a better understanding of the issue.
The WRA has even assisted in paying for legal fees. Each case is different, and so each arrangement and the WRA’s involvement differs. However, the WRA’s Legal Action Program funds may not be used to pay any judgment for damages or fines, or any other award of damages.
The WRA invests time and resources to research some of the most complex issues impacting water quality and property rights. The WRA has even been an expert witness as well as providing research to attorneys as well as state agencies in policy and rulemaking.
Typically, the WRA participates in a case by filing and arguing as an amicus curiae (friend of the court). The WRA Legal Action Program has filed hundreds of amicus briefs (friend of the court brief) throughout all levels of the courts throughout Wisconsin and even in the United States Supreme Court and federal district court. The WRA also has been a member of a coalition of similarly interested parties, as well as a party to the lawsuit.
When does WRA get involved?
- If the case involves legal principles that significantly affect REALTORS®️
- The outcome of the case may establish an important legal precedent for the real estate industry
- The Legal Action Program’s participation will likely increase the probability of a favorable outcome or lessen the probability of an unfavorable result for the real estate industry
Submit your case
Complete the Legal Action Program application form. It may be advantageous to have the attorney who is working on the case complete the form. Make sure the application clearly states what type of assistance is desired and any applicable dates and deadlines.
Continent Resources v. Fair (Nebraska) and Tyler v. Hennepin County (Minnesota)
Current status: Arguments on April 26, 2023, United State Supreme Court
On March 2, 2023, the WRA filed an amicus brief with the United States Supreme Court supporting the Pacific Legal Foundation’s petition to hear a consolidated case on the issue of foreclosure equity theft. The two cases the court may choose to consolidate and combine are Continent Resources v. Fair (Nebraska) and Tyler v. Hennepin County (Minnesota).
Under the Fifth Amendment of the U.S. Constitution, the government is prohibited from taking property for a public purpose without just compensation. In 2022, the WRA helped enact a new law, 2021 Wis. Act 216, that eliminates the ability of counties in Wisconsin to keep the net proceeds in a property tax foreclosure sale.
While Act 216 ended the ability of counties in Wisconsin to keep the net proceeds in a property tax foreclosure sale, Wisconsin case law continues to state if the property owner received sufficient notice of a tax foreclosure action to satisfy due process requirements, a taking does not occur when the government retains any net proceeds. Therefore, the WRA submitted a brief to ensure both the common law and statutory rights of property owners are protected.Learn More:
- Copy of WRA’s Amicus Brief https://www.supremecourt.gov/DocketPDF/22/22-166/256163/20230303142229860_43500%20pdf%20Larson.pdf
- Details of the case https://www.scotusblog.com/case-files/cases/tyler-v-hennepin-county-minnesota
- Learn more from the Pacific Legal Foundation https://pacificlegal.org/case/nebraska-home-equity-theft-tax-foreclosure
Pagoudis v. Keidl (2020AP225)
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 could potentially subject sellers to indefinite lability even when the seller 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 has far-reaching consequences on Wisconsinites throughout the state.Learn More:
- Copy of WRA’s Amicus Brief https://acefiling.wicourts.gov/document/eFiled/2020AP000225/486520
- Details of the case can be found at https://wscca.wicourts.gov/caseDetails.do?caseNo=2020AP000225&cacheId=552DE2E993B1924B6EF8EED94AE3DC3F&recordCount=1&offset=0.
Bird Glass Ordinance – City of Madison (2022AP001468)
In July 2021, the Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit against the City of Madison on behalf of the WRA and four other coalition parties, Associated Builders and Contractors of Wisconsin, Inc, Commercial Association of REALTORS®, Wisconsin, Inc., NAIOP Wisconsin Chapter, Inc., and the Wisconsin Builders Association challenging the City’s bird-safe glass ordinance.
In 2020, the City of Madison adopted an ordinance that new buildings over 10,000 square feet must meet new “bird-safe glass treatment requirements.” Adding bird-safe glass to a project increases the cost for developers and building owners, as well as being a cost passed on to tenants.
However, Wisconsin’s uniform building code established in 2014 provides that no city, “may enact or enforce an ordinance that creates minimum standards for constructing, altering or adding to buildings unless the ordinance “strictly conforms” to the uniform dwelling code. See SPS § 361.03 (5)(a)1. The coalition argued the City of Madison’s ordinance undercuts and disregards Wisconsin’s uniform building code.
Dane County circuit court ruled in favor of the City of Madison, holding the ordinance was valid. The coalition appealed.Learn More:
- Copy of the coalition appeal brief https://acefiling.wicourts.gov/document/eFiled/2022AP001468/586065
- Details of the case https://wscca.wicourts.gov/caseDetails.do?caseNo=2022AP001468&cacheId=967C1A923DE18B6730F9AFD874C41A05&recordCount=1&offset=0
- News Story: https://madison.com/news/local/govt-and-politics/judge-madison-bird-safe-glass-ordinance-legal/article_00e53800-1a88-5429-be81-cbb6f79f0093.html
- News Story: https://wislawjournal.com/2023/01/04/madison-attorneys-respond-after-construction-groups-appeal-bird-protection-building-ordinance/
Featured Case – Lobermeier v. Movrich
David J. & Diane Lobermeier v. Jerome & Gail Movrich
Do waterfront property owners have a right to place a pier on a flowage or other water body if the lakebed is privately owned? This debate led to the recent 2021 Wis. Act 47.
The story begins with a brother and sister, David Lobermeier and Gail Movrich. The Lobermeiers, David 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.
The Movriches, Gail and her husband, purchased one of those waterfront lots in the subdivision. For years, the Movriches and the other waterfront property owners placed seasonal piers, which sat on the Lobermeier-owned bed of the flowage. However, at some point, there was a dispute between the Movriches and the Lobermeiers. The Lobermeiers demanded the Movriches and other property owners remove their piers from the water and stop 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 they owned the bed of the flowage and placing their pier on privately owned land would be trespassing.
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 then led to 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 water body type. Therefore, in the end, the Movriches became the true winners.
Link to Wisconsin Supreme Court Case
Link to Amicus Brief
Featured Case – Ogden v. Delafield
Peter Ogden Family Trust of 2008 v. Board of Review for the Town of Delafield
Since 2012, the Ogden family has owned two lots of land: one 4.46 acres and the other 7.76 acres. From 2012-15, these lots were classified as “agricultural land” and had an assessed value of $17,100 for tax purposes. However, in 2016, the lots were reclassified as “residential,” and the assessed value jumped to $886,000.
Ogden disagreed with this new assessment and took his case to the Town of Delafield Board of Review. Ogden argued his lots should still be considered agricultural land because he was using the land to harvest apples, alfalfa, and Christmas trees. A local farmer, Lloyd Williams, also testified that he and Ogden had farmed the lots since 2012, 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 the land was not being used for business purposes as Ogden did not sell any of his harvest. The assessor was wary that Ogden was 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 Ogden’s lots as residential land.
Ogden 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 Ogden, stating that 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 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, they passed the reins to the town board to re-determine their 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.
Link to Wisconsin Supreme Court Case
Link to Amicus Brief
Featured Case – Murr v. Wisconsin
Murr v. Wisconsin
Does a regulation requiring the merger of two contiguous, substandard lots owned by the same person constitute a regulatory taking of private property by the government? That issue — based on a fight in western Wisconsin in which one family saw their property rights curbed by the government — found its way to the U.S. Supreme Court in 2017 and ultimately led to a change in state law.
In the 1960s, the Murr family purchased two separate but adjacent lots on the scenic St. Croix River in western Wisconsin. On one parcel purchased in 1960, the family built a cabin they have enjoyed for decades. The other parcel, purchased in 1963, remained undeveloped for decades.
In 1975, 12 years after the Murr 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, they are merged into a single, buildable lot. Neither of the two lots owned by the Murr family were at least one acre. In an effort to improve their existing cabin on the one parcel, the Murr family was planning to sell the undeveloped lot and use the revenue from the sale to renovate their cabin. Because the Murr family purchased both lots more than a decade before the 1975 ordinance, they expected to be grandfathered in, but when they requested a variance, the application was denied.
In response, they filed suit 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 reportedly was expecting to sell the undeveloped lot for approximately $400,000. In this case, 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 Murr family’s 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 on this monumental issue on property rights.
The Murr family’s argument was the government was preventing them from selling their property, in this case, the second undeveloped parcel. “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 after it was conveyed to them by their parents.
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 Murr family’s brave stand for property rights was rewarded — but not by the courts. The Supreme Court ruled against them, but their work with the Wisconsin REALTORS® Association to elevate this issue led to state lawmakers enacting legislation at the Capitol in Madison to ensure this issue didn’t affect other property owners.
The Homeowners Bill of Rights, 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.
Link to Legislative Action
Link to Amicus Brief
Link to United States Supreme Court Decision