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ESCALATOR CLAUSES IN COMMERCIAL LEASES

Persons wishing to execute long term commercial leases are often apprehensive that the cost of maintaining the property may eventually exceed the monthly rent. For example where a fixed rent amount becomes insufficient because of a sudden rise in property taxes or insurance. For this reason land lords often employ “escalator clauses” which incrementally increase rent to cover additional costs. This can be done either by using a formula, such as a fixed annual increase in the rent at an agreed upon percentage or by more ambiguous means such as a term which indicates the rent will increase as required by costs incurred. A third method is to use the consumer price index or another inflationary index. It is very wise to include such a term, however any of the three methods come with potential problems. There is often abuse in Common Area Maintenance charges. Leases often fail to define what an “operating expense” actually means. Most leases do not provide for any audit rights for a tenant wishing to challenge a poorly explained increase in operating expense. A fixed percentage can eliminate many of these problems but the land lord will be very dissatisfied with the rental situation if the cost of maintaining the property actually begins to exceed the rent. Proper drafting and foresight will eliminate such problems, however legal assistance should be sought out. Our skilled attorneys are ready to assist you as a prospective tenant or land lord in devising language that suits your particular needs. Call David at (920)437-8191.

ADVERSE POSSESSION CASES

Adverse possession is the process wherein legal title transfers to a property owner because the actual title owner neglected or failed to care for their property.  In such cases, adjacent land owners may make an appeal to the courts that the title to neighboring property should be transferred to them.

WISCONSIN ADVERSE POSSESSION
Whether in Green Bay or elsewhere in Wisconsin, adverse possession claimsusually involve boundary issues where the parties operated under a mistaken belief as to what their boundaries were.  At some point it becomes clear that one or both parties were wrong, and because of years of use, one property owner declares that even though they are not the actual property owner, the land belongs to them by virtue of adverse possession.

Such claims are usually based on the claiming parties extended use of the property under the belief (albeit often mistaken) that it belongs to them.
Often parties mistaken as to property lines build structures on the wrong side of, or over, the property line creating great problems.  Properties where such encroachment exists can be difficult to sell because it is unclear who owns what.

If the parties cannot resolve the matter amicably, such as by one party selling a disputed parcel or quit claiming the disputed parcel, only a court can decide in whose name title should lie in a process called an action for declaratory judgment.

SUCCESSFUL ADVERSE POSSESSION CLAIMS
In Wisconsin, to succeed on a claim for adverse possession, the claiming party must clear several factual hurdles and must remain in possession of the disputed property for 20 years.  Where the dispute is based on a mistaken or disputed written instrument, the statutory period of adverse possession is 10 years.  Regardless as to which scenario applies to your facts, this area of law is exceedingly complex.

GREEN BAY, WI PROPERTY ATTORNEYS
In Green Bay and Wisconsin, you need experienced counsel to assist you in prosecuting or defending against an adverse possession claim.  Please contact Attorney David Daul for additional assistance.  (920)437-8191, or email him [email protected] The lawyers of the Green Bay, Wisconsin law firm of Wanezek, Jaekels, Daul & Babcock, S.C., can help you with adverse possession issues, boundary disputes, and other real property concerns. Contact us today!

LAND CONTRACTS

You may have elected to put in place a land contract to sell your property.  This happens if for instance the buyer cannot obtain conventional financing, or if the sale is between family members.

FORECLOSING A LAND CONTRACT
However, if the deal turns sour and the buyer stops paying, the seller must foreclose the land contract to recover his or her full rights in the contract.  This is a process similar to a conventional foreclosure but different in several ways.

The foreclosure process is generally the only way to eliminate the land contract and create a “clear title” that is title to property that does not have any “clouds” (uncertainties) as to ownership.

LEGAL HELP WITH FORECLOSURES
You will require competent legal guidance in foreclosing a land contract.  Green Bay Wisconsin Attorney David Daul is quite experienced in this process, both in defending against and prosecuting such foreclosure actions. Call David to discuss your issues with land contracts directly at (920)437-8191, send him a message using the Contact Us form.

Your local attorneys at Wanezek, Jaekels, Daul & Babcock, S.C., are ready to help you with all of your real property and real estate legal needs, including land contract formation and foreclosure.

Adverse Possession / Boundary Disputes

It is frequently the case that boundary disputes erupt between neighboring land owners in Wisconsin.  Often neighbors function for years believing they understand where a boundary is, only to learn after a survey is done (for instance) that the parties have been wrong the whole time.  Sometimes only one party is confused as to where the property or boundary line lay and insists he/she has rights in land which is not truly theirs.

WISCONSIN ADVERSE POSSESSION
Under these circumstances Wisconsin’s law of adverse possession will often apply.  The analysis under the law is complex and very factually driven.  The interpretation of these factors is modified or guided by published case law.

If you have purchased real estate and are concerned with your neighbor’s mistaken belief as to a border or boundary dispute, you should consult with an experienced attorney to determine what the outcome of your case is likely to be and to assist in resolving the boundary dispute.

In the Green Bay area, please call Attorney David Daul at 920-437-8191. Attorney Daul and the lawyers at the Wanezek & Jaekels law firm are experienced in handling adverse possession and other real property cases.Contact Us online or call today.

WISCONSIN LAND CONTRACT

A land contract is a contract between a buyer and seller of real property wherein the seller provides financing to buy the property. There is usually not a lending institution involved. Under this arrangement, the seller actually retains the “legal title” to the property while allowing the buyer to take possession of it in transferring “equitable title”. The sale price is typically paid in periodic installments, often with a balloon payment. When the payment price has been paid, the seller is obligated to convey all legal title of the property to the buyer.

LAND CONTRACT RISKS
Land contracts are often used where the buyer cannot obtain conventional financing or when the buyer is a person of close relationship to the seller. There are, however, many risks for both the buyer and the seller in such circumstances. For instance, if there is a mortgage recorded against the property from a conventional lending institution, the land contract will be subordinate to the first place conventional loan. Also, if the seller of the real estate does not obtain the consent of the senior place mortgage holder, the “due on sale” clause involved in the applicable mortgage documents may require payment of the remaining balance on the mortgages as soon as equitable title is transferred. Therefore, it is crucial to have consultations with the first place mortgage holder if the land contract is considered. Buyers attempting land contracts without the assistance of an attorney may be unaware that there other mortgage loans recorded against the property!

CONSULT AN ATTORNEY
Land contracts often give rise to legal disputes; therefore, it is extremely advisable to have an attorney assist you in either offering or accepting a land contract. Often these transactions are attempted by friends and family thinking that the matter can be handled informally and easily. However, the reality of the matter is that there are often complex issues that the parties are unaware of that are implicated in transferring equitable title in a land contract

In Green Bay, please consult with one of the attorneys at Wanezek & Jaekels, S.C., including Attorney David Daul, with regard to the issues associated with a land contract before entering into such an arrangement. Our attorneys are experienced in all aspects of land contacts and other real estate and property matters. Call 1.920.437.8191 for a consultation.

PROTECTIONS FOR RESIDENTIAL TENANTS IN FORECLOSURES

If you are a tenant and your landlord has their property foreclosed upon, there are a number of protections for you during and following the foreclosure process. 

NOTICE OF FORECLOSURE REQUIRED
First, the landlord/owner must notify the the tenants that a foreclosure action has been commenced against the property and if a judgment is entered, the date that the redemption period expires.  Second, the plaintiff (typically the lender) in a foreclosure action must provide tenants with notice when the foreclosure action is filed, when the foreclosure judgment is entered, and when the confirmation of the foreclosure sale is scheduled.  If a plaintiff in a foreclosure action fails to give the proper notices to the tenant, a tenant can seek damages up to $250, plus reasonable attorney fees.  These notice provisions allow tenants to be aware of what is happening with repect to where they live so they are not blindsided when they are told they need to vacate their apartment. 

TENANT STAY AND RENT WITHHOLDING
In addition to the notice provisions, tenants are also allowed to stay in their residence for up to two months following the month when the confirmation of foreclosure sale occurs.  The tenants can also withhold the last period’s rent in consideration for their security deposit paid.  Once the confirmation of foreclosure sale occurs and the tenant decides to stay for an additional two months, the tenant must make arrangements to pay rent to the new owner and not the former owner of the property. 

– Find our more about Wisconsin landlord-tenant and other real estate laws

These are just a few examples of the protections afforded to tenants when their landlord’s property has been foreclosed upon.  If you have further questions or desire additional information regarding a tenant’s rights, contact Attorney Greg Babcock at our Green Bay, Wisconsin office.

NEW LANDLORD-TENANT LAWS

The Wisconsin legislature passed a bill and was signed into law by Gov. Scott Walker last month which will have significant changes to the landlord-tenant law in Wisconsin. The new laws became effective on April 1, 2012. This article will provide a brief overview of a few significant changes.

The new law allows for the severibility of rental agreement provisions, such that any unenforceable or void provisions may be removed and the remaining provisions of the rental agreement may be enforced. However, there are about eight provisions that can not be included in the rental agreement, and if they are, the entire rental agreement will be void and unenforceable against the tenant.

It will now be easier for a landlord to dispose of a tenant’s abandoned property. Prior law required a landlord to hold the tenant’s property for 30 days after providing a tenant written notice. Under the new law, the landlord can dispose of the tenant’s property immediately provided that the landlord has provided the tenant with this notice in the rental agreement. There are some exceptions to this including prescription medicine and some vehicles.

In certain circumstances, the landlord will be required to disclose all known housing code violations to the tenant prior to entering into a rental agreement. In addition, in most cases, a landlord must provide a tenant with a standardized information sheet which contains an itemized condition of the property at the time the tenant takes occupancy.

Some other notable changes include: a landlord’s entitlement to receive holdover damages after the tenancy terminates and the tenant has not vacated; new requirements for withholding from a tenant’s security deposit and the timing of the return of the security deposit; and the ability to accept past due rent by a landlord and still maintain an eviction action.

Violations of the new laws may constitute a violation of the unfair trade practices act. This is a very complicated area of law. If you are a landlord or tenant and need legal assistance or a review of your rental agreements, contactattorney Greg Babcock of our office for a consultation.

In the Green Bay and Northeast Wisconsin areas, the Wanezek & Jaekels law firm is ready to assist you.  Contact us today!

LITIGATION EXPENSES IN CONDEMNATION CASES

The Wisconsin Supreme Court recently clarified that a condemning party is not required to make a jurisdictional offer in order for the condemnee to recover litigation costs. 

American Transmission Company (ATC) filed a condemnation proceeding against property owners hoping to obtain an easement on their land to lay transmission lines.  Under Wis. Stat. section 32.06(2a), the condemnor must attempt to negotiate personally with the property owner before making a jurisdictional offer.  In this case, ATC appraised the easement at $7,750 and the property owners agreed to convey the easement to ATC at that amount.  No jurisdictional offer was ever made. 

The Supreme Court found that the property owners were entitled to litigation expenses based upon the negotiated price even though ATC never made a jurisdictional offer.  Section 32.28(3)(d) allows a party to obtain litigation expenses where the award of a condemnation commission exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15 percent. 

In this case, the property owners appealed the amount of compensation awarded for the easement and the trial court exceeded the award by at least 15 percent.  The trial court granted the property owners litigation expenses as a result.  The Court of Appeals reversed and concluded that litigation expenses are not available unless the condemnor makes a jurisdictional offer.  The Supreme Court ultimately agreed with the trial court and determined that litigation expenses may be awarded even if no jurisdictional offer is made. 

The Supreme Court found that it was unreasonable to conclude that the legislature intended to treat better the contentious owner who forces the condemnor to go through the hoops of a jurisdictional offer than the cooperating owner who takes the negotiated price appeal route.   

CONDEMNATION

Many persons experience the difficult circumstances involving a state condemnation of private property. In particular in the Green Bay area there has been a recent increase of these types of state activities as the HWY 41 project / expansion occurs. Don’t be rolled over. State appraisers tend to be conservative in their appraisals for value. You have the right to contest the states appraisal by hiring your own appraiser at State expense. If no agreement is reached as to valuation you further have the right to appeal the determination to a commission or directly to the courts. Our firm has represented both municipalities processing condemnation matters and we have represented persons subjected to condemnation proceedings on numerous occasions. Warren, Greg or David at our office are prepared to assist you in obtaining the true value of your property as result of a condemnation proceeding.

Obtain Legal Help You Can Rely On

To get in touch with one of our attorneys about your case, call our firm at (920) 437-8191 or fill out the form below.