What if there is a judgment against my company?

Milwaukee Sunset PhotoWhen your company is sued, the person suing you is looking for money. However, the mechanism for doing this is obtaining a judgment. After a trial or a motion for summary judgment the Judge (or Jury) will make a finding that you owe some money, and that finding will be reduced to a judgment. The question I want to address in this article is: what happens then? Read more

How do I preserve my lien rights as a contractor in Wisconsin?

Lien laws are both stringent and confusing. Any contractor who improves real property is given an extraordinary power of being able to place a lien on the property in the event of non-payment, before obtaining a judgment. However, in order to maintain that right, there are strict requirements for notice to the land owner that must be met. Read more

Contractors Beware – Theft by Contractor is Easier Than You Think

Most contractors represent a shining example of the all-American hardworking small business owner. Unfortunately, a few bad apples have a tendency to poison the public’s perception of the whole bunch. Thus, the Wisconsin Legislature has codified its “Theft by Contractor” statute under Wis. Stat. 779.02 setting forth very draconian rules about the use of customer funds, and very severe penalties for the violation thereof. If you are a contractor, tread lightly, as it is easier than you think to commit a theft by contractor. Read more

Do I have a claim for Adverse Possession?

When property disputes come up, one issue that is always raised is whether or not there is a claim for adverse possession.

The concept of adverse possession comes from the common law concept that if someone utilizes, cares for, and treats property as his/her own for a long enough period of time, then they own that land. The point of this rule is not to allow sneaky neighbors to steal a little land, but rather is a practical solution to sometimes uncertain property lines.

The rule has been codified in Wis. Stat. § 893.25 and sets forth the following:

(1) An action for the recovery or the possession of real estate and a defense or counterclaim based on title to real estate are barred by uninterrupted adverse possession of 20 years, except as provided by s. 893.14 and 893.29. A person who, in connection with his or her predecessors in interest, is in uninterrupted adverse possession of real estate for 20 years, except as provided by s. 893.29, may commence an action to establish title under ch. 841.

(2) Real estate is possessed adversely under this section:
(a) Only if the person possessing it, in connection with his or her predecessors in interest, is in actual continued occupation under claim of title, exclusive of any other right; and

(b) Only to the extent that it is actually occupied and:

1. Protected by a substantial enclosure; or

2. Usually cultivated or improved.

The Wisconsin Court of appeals recently explained how strict the requirement for exclusive use (not just continuous use) is to establishing an adverse possession claim when looking at Wis. Stat. § 893.25 (adverse possession of government land). When the Plaintiff argued that he had the right because he had maintained the property, the Court disregarded that argument,

We conclude that this argument fails because, regardless of maintenance and improvement, Vaneman must establish exclusive use, which he has failed to do.

Vanemen v. Reed, No. 2011AP1465. Nov. 1, 2012.

Like any complex legal concept, the facts of each case will vary significantly. If you believe that you may have a claim for adverse possession you need to talk with an attorney, but remember that you need to possess the property openly and exclusively for the statute to apply.

What lien rights do I have as a commercial sub-contractor?

The short answer is potentially a fair amount of rights, though as with many things it depends. In general residential work, the main mechanism for enforcing payment for both general contractors and sub-contractors is through the use of construction liens. This may not always be the case in commercial projects as it makes a difference as to what type of project it is to determine what lien rights, if any, exist for sub-contractors and what notice is required to be given.

According to the Wisconsin Courts,

A subcontractor is a person whose relation to the prime contractor is substantially the same for a part of the work as the prime contractor’s is to the owner for the entire job.

Farmer v. St. Croix Power Co. 117Wis. 76, 93 N.W. 830 (1903).

 The Wisconsin Statutes, 779.01(3), sets out the extent of who has lien rights:

Any person who performs, furnishes, or procures any work, labor, service, materials, plans, or specifications, used or consumed for the improvement of land, and who complies with s. 779.02 shall have a lien therefore on all interests in the land belonging to its owners.

It is noteworthy that the statute defines it as “any person,” not limiting those rights just to General Contractors. Therefore, within the scope of the rest of the Wisconsin statutes, sub-contractors may have certain lien rights.

What those lien rights are and what notice requirements there are depends on the type of project. A “public works” project, defined as any improvement or work undertaken by a unit of government, will potentially have different lien rights and notice requirements  for sub-contractors than a “large private” project (which may have notice requirements as short as 5 months from the date the work is performed). “Privately bonded” cases may eliminate all lien rights and instead require any claims to be made pursuant to the bonding contract.

In any case, if you are a sub-contractor and you believe you might have lien rights on a project, it is important to contact an attorney right away as the specifics of your project will bear on whether you have lien rights and what you have to do to preserve them.

 

 

 

Can you cover up defects in your house before sale?

As a seller of residential (or commercial) real estate be very careful as to what you attempt to conceal or fail to disclose. The Wisconsin Appellate Court recently held that misrepresentations are not limited to oral or written declarations but also could include efforts to conceal defects, such as painting a basement wall to conceal whether it leaked.

In the Novell v. Migliaccio (2009AP1576) decision, the Appellate Court stated:

The only issue on this appeal is whether painting a basement wall can be a misrepresentation under § 100.18(1) if a jury believes that the painting was done to hide evidence that the basement leaked. We hold that it can and that there are genuine issues of material fact whether the Migliaccios painted their basement and, if so, thus misrepresented the basement’s condition. Accordingly, we reverse and remand for trial.

Wisconsin Statute § 100.18(1) states in relevant part:

No person … with intent to sell … real estate … shall make … [a] statement or representation of any kind to the public relating to such … sale … of such real estate … or to the terms or conditions thereof, which … statement or representation contains any assertion, representation or statement of fact which is untrue, deceptive or misleading.

While the case was dismissed (presumably due to settlement) after remand to the Circuit Court, the Appellate Court’s holding that actions taken to conceal defects can constitute misrepresentations under Wisconsin Statute § 100.18 (which carries with it severe penalties such as attorneys’ fees and in some situations, double damages) still remains.

As a seller, be very careful as to what you try and conceal about the nature of your house and the disclosures that you make.