Walworth State Bank v. Abbey Springs Condominium Association, Inc.

2016 WI 30

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP940
COMPLETE TITLE: Walworth State Bank,
Plaintiff-Respondent-Petitioner,
v.
Abbey Springs Condominium Association, Inc. and
Abbey
Springs, Inc.,
Defendants-Appellants.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 363 Wis. 2d 655, 862 N.W.2d 903)
(Ct. App. 2015 – Unpublished)

OPINION FILED: April 29, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 9, 2015

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: Phillip A. Koss

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. dissents, joined by BRADLEY, A. W.,
J.
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
by Edward F. Thompson, and Clair Law Offices, S.C., Delavan, and
oral argument by Edward F. Thompson.

For the defendants-appellants, there was a brief by David
C. Williams, and Harrison, Williams & McDonell, LLP, Lake
Geneva, and oral argument by David C. Williams.

There was an amicus curiae brief by John E. Knight, Kirsten
E. Sprira, and Boardman & Clark LLP, Madison, on behalf of the
Wisconsin Bankers Association.
 2016 WI 30
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP940
(L.C. No. 2013CV855)

STATE OF WISCONSIN : IN SUPREME COURT

Walworth State Bank,

Plaintiff-Respondent-Petitioner, FILED
v.
APR 29, 2016
Abbey Springs Condominium Association, Inc. and
Abbey Springs, Inc., Diane M. Fremgen
Clerk of Supreme Court

Defendants-Appellants.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 REBECCA G. BRADLEY, J. We must decide whether a

condominium policy violates Wisconsin law. Abbey Springs

Condominium Association, Inc. and Abbey Springs, Inc.

(collectively, "Abbey Springs") have a Membership and Guest

Policy that forbids both current and subsequent unit owners from

utilizing recreational facilities until unpaid condominium

assessments are paid in full. In other words, the policy

forbids new owners of a particular unit from utilizing
recreational facilities if there are outstanding assessments
 No. 2014AP940

attributable to the unit. Following a foreclosure action and

sheriff's sale of the property at issue to Walworth State Bank,

the Bank paid the former owner's outstanding assessments under

protest. Walworth State Bank then asserted that the Abbey

Springs policy violates Wisconsin law because it impermissibly

revives a lien on the condominium units that was eliminated by

the foreclosure action. As an alternative argument, Walworth

State Bank argues that the policy renders title to the units

unmarketable. The Walworth County Circuit Court1 agreed with

Walworth State Bank and granted it summary judgment. The court

of appeals reversed.2 For the reasons that follow, we reverse

the court of appeals.

¶2 We hold that Abbey Springs's Membership and Guest

Policy effectively revived the lien against the property that

the Order for Judgment on Foreclosure and Judgment (hereinafter

Foreclosure Judgment) entered against Abbey Springs and the

former unit owners had extinguished. Although Abbey Springs

concedes that Walworth State Bank had no legal obligation to pay
the former owners' unpaid assessments following foreclosure, the

policy dictates that any unpaid assessments stay with the unit

and transfer to the new owners rather than travel with the

1
The Honorable Phillip A. Koss presiding.
2
Walworth State Bank v. Abbey Springs Condo. Ass'n, No.
2014AP940, unpublished slip op. (Wis. Ct. App. Mar. 26, 2015).

2
 No. 2014AP940

former unit's owner who actually incurred the debt.3 The policy

does so by preventing a new purchaser of any unit, whose only

connection to the unpaid assessments is through the unit itself,

from accessing the recreational facilities if the prior owner

failed to pay his or her assessments. As a result, the policy

effectively allows Abbey Springs to assert a right against the

property for the prior owner's unpaid assessments in violation

of well-established foreclosure law. Furthermore, the policy

violates the Foreclosure Judgment that eliminated "all right,

title, interest, lien or equity of redemption" of Abbey Springs

in and to the foreclosed units. Because we conclude that the

condominium policy violates well-established foreclosure law and

the Foreclosure Judgment entered in the underlying foreclosure

action, we do not address Walworth State Bank's argument that

the policy renders the unit's title unmarketable.

I. Background

A. Units 18 and 19 at Abbey Springs

¶3 Walworth State Bank held a first real estate mortgage
on Units 18 and 19, a single family residence on two lots, in

Abbey Springs Condominium No. 1. Unit owners in Abbey Springs

Condominium No. 1 pay assessments that allow access to

recreational facilities that include a Yacht Club, restaurants,

3
Presumably Abbey Springs could pursue a separate action
against the former unit owners to recover the unpaid
assessments. Its Membership and Guest Policy nevertheless ties
unpaid assessments to the unit itself, regardless of a change in
unit ownership.

3
 No. 2014AP940

fitness and golf facilities, and boat slips.4 These recreational

facilities are not listed as common elements of units located in

Abbey Springs Condominium No. 1.

¶4 Abbey Springs has a Membership and Guest Policy that

suspends both current unit owners and subsequent owners from the

recreational facilities if unpaid assessments attributed to the

unit are 90 days past due. The policy, in pertinent part,

provides:

If any regular monthly or special assessment against
any Unit is delinquent for more than ninety (90) days
past its due date, the owner or owners of that Unit,
and any subsequent owners, shall automatically and
without notice be suspended from any use or occupation
of the Yacht Club, Clubhouse Grille, Pool Café,
fitness facilities, golf facilities, and boat
launching facilities, until such time as assessments
are paid in full.
¶5 In addition, Abbey Springs has Bylaws that govern

operation of the property. Article V, Section four, titled

Waiver of Use, provides that "no unit owner may exempt himself

from liability for his contribution towards the common expenses

or recreational facilities expenses by waiver of the use or
enjoyment of any of the common areas and facilities or the

recreational facilities, or by abandonment of his unit."

4
As we understand it, the assessments cover membership
costs and unit owners are required to pay additional costs for
the actual use and enjoyment of at least some of the
recreational facilities. For example, the Membership and Guest
Policy indicates that members are provided "a member account for
which they can charge any club-related expense" and that unit
owners are responsible for all charged amounts.

4
 No. 2014AP940

B. Underlying Foreclosure Action

¶6 In 2012, Walworth State Bank initiated a foreclosure

action against the owners of units 18 and 19, a single family

residence. The Complaint named Abbey Springs as a defendant in

that action due to its claim of unpaid assessments attributable

to the property. In January 2013, the Walworth County Circuit

Court entered a Foreclosure Judgment. It determined the total

amount owed Walworth State Bank to be $855,511.41. The circuit

court's order and judgment in the foreclosure action also

provided that the current owners and Abbey Springs were "forever

barred and foreclosed of all right, title, interest, lien or

equity of redemption" in and to the property. The circuit court

retained jurisdiction in the foreclosure action "until

redemption, or confirmation of sale, whichever occurs first."

Walworth State Bank later purchased the property in a sheriff's

sale. On April 29, 2013, the circuit court confirmed the

sheriff's sale of the property to Walworth State Bank.

¶7 Prior to the sheriff's sale, Abbey Springs sent a
letter to Walworth State Bank to alert the Bank to a policy it

had adopted "to forbid use of the recreational facilities to the

owners or occupants of any unit upon which assessments or other

amounts owed to the Association are delinquent, regardless of

whether or not the Association's lien rights were eliminated by

foreclosure." Abbey Springs suggested that Walworth State Bank

include notification of this policy in its announcements of the

sheriff's sale of the property. On February 5, 2013, Abbey

5
 No. 2014AP940

Springs sent a follow up letter to Walworth State Bank with a

copy of the Membership and Guest policy enclosed.

¶8 Walworth State Bank responded to Abbey Springs's

letters on June 24, 2013 and asserted that the Membership and

Guest Policy violated numerous laws and the order in the

foreclosure action. On June 26, 2013, Abbey Springs countered

that it "does not claim, and has never claimed, that Walworth

State Bank or any grantee from Walworth State Bank is liable for

past assessments due the Association."

¶9 Walworth State Bank arranged for the property to be

sold to new buyers with a closing scheduled for July 12, 2013.

However, on July 12, 2013, Abbey Springs's Executive Director

issued a letter stating that the outstanding assessments would

be satisfied if "the seller pays Abbey Springs $13,225.32." As

a result, the new buyers refused to close on the property as

scheduled. On the same day, July 12, 2013, Walworth State Bank

sent Abbey Springs another letter accusing the condominium

association of "thwarting" the sale and requiring Walworth State
Bank to pay the outstanding assessments. Abbey Springs

reasserted its position——the Bank was not required to pay the

prior owner's outstanding assessments——in a July 16, 2013

letter. Ultimately and under protest, Walworth State Bank paid

the prior owners' unpaid assessments in the amount of $13,225.32

to complete the sale of the property to the new owners.

C. Procedural History

¶10 Walworth State Bank filed suit against Abbey Springs
and asked the circuit court to declare Abbey Springs's policy in
6
 No. 2014AP940

violation of Wisconsin law and to order judgment in the amount

of $13,225.32 for the assessments it paid under protest. The

circuit court granted Walworth State Bank's summary judgment

motion after considering cross-motions for summary judgment. It

determined that Abbey Springs's policy violated Wisconsin law by

holding new owners jointly and severally liable for the prior

owners' unpaid assessments in violation of Wis. Stat.

§ 703.165(2) (2013-14)5 and by affecting the quality and

marketability of the property's title in violation of Wis. Stat.

§ 703.10(6). It also granted Walworth State Bank a monetary

judgment against Abbey Springs in the amount of $13,225.32.

¶11 The court of appeals reversed. Walworth State Bank v.

Abbey Springs Condo. Ass'n, No. 2014AP940, unpublished slip op.

(Wis. Ct. App. Mar. 26, 2015). It held that the policy was not

contrary to any Wisconsin statute and that Walworth State Bank

had "no obligation to pay the delinquent assessments." Id.,

¶18. Specifically, it held that Wis. Stat. § 703.165(5)(b),

which establishes lien priority for unpaid assessments, did not
govern the issue of liability for the unpaid assessments. Id.,

¶16. It further held that Wis. Stat. § 703.165(2), which

governs liability for assessments, does not govern liability for

unpaid assessments in an involuntary grant, such as the

sheriff's sale that occurred here. Id., ¶18. It further

reasoned that "[t]he policy merely created a pay-to-play

5
All references to the Wisconsin Statutes are to the 2013-
14 version unless otherwise indicated.

7
 No. 2014AP940

requirement, and did not attempt to create joint and several

liability in any respect."6 Id.

II. Analysis

¶12 Appellate courts independently review orders for

summary judgment utilizing the "same methodology as the circuit

court." Yahnke v. Carson, 2000 WI 74, ¶10, 236 Wis. 2d 257, 613

N.W.2d 102. "Summary judgment is appropriate when 'the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.'"

Id. (quoting Wis. Stat. § 802.08(2) (1995-96)).

A. Inapplicability of Wis. Stat. § 703.165(2)

¶13 Walworth State Bank argues that Abbey Springs's

Membership and Guest Policy violates Wis. Stat. § 703.165(2) by

holding subsequent owners who obtain property in an involuntary

sale jointly and severally liable for the unpaid assessments of

6
The court of appeals also held that Abbey Springs's policy
did not render the units' title unmarketable because Walworth
State Bank failed to produce any evidence that the policy
prevented it from conveying title. Walworth State Bank v. Abbey
Springs Condo. Ass'n, No. 2014AP940, unpublished slip op., ¶20
(Wis. Ct. App. Mar. 26, 2015).

8
 No. 2014AP940

past owners. It also asserts that the policy renders title to

the units unmarketable in violation of Wis. Stat. § 703.10(6).7

¶14 Whether the Membership and Guest Policy is valid in

light of the Foreclosure Judgment that eliminated "all right,

title, interest, lien or equity of redemption" of Abbey Springs

in and to the property, presents an issue of first impression

that is not directly controlled by Wisconsin case law or the

Wisconsin Statutes. Although Walworth State Bank argues that

Wis. Stat. § 703.165(2) governs and that the policy is invalid

under this statute, we do not agree.

¶15 Wisconsin Stat. § 703.165 is titled: "Lien for unpaid

common expenses, unpaid damages, and unpaid penalties." Section

703.165(2) pertains to "liability for assessments" and states,

in full:

A unit owner shall be liable for all assessments, or
installments thereof, coming due while owning a unit,
including any assessments coming due during the
pendency of any claim by the unit owner against the
association or during any period in which the unit is
not occupied by the unit owner or is leased or rented
to any other person. In a voluntary grant, the
grantee shall be jointly and severally liable with the
grantor for all unpaid assessments against the grantor
for his or her share of the common expenses up to the
time of the voluntary grant for which a statement of
condominium lien is recorded, without prejudice to the

7
Because we conclude that Abbey Springs's Membership and
Guest Policy violates well-established foreclosure law, we do
not address Walworth State Bank's alternative argument that the
policy renders title to the units unmarketable under Wis. Stat.
§ 703.10(6). "Typically, an appellate court should decide cases
on the narrowest possible grounds." Maryland Arms Ltd. P'ship
v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15.

9
 No. 2014AP940

rights of the grantee to recover from the grantor the
amounts paid by the grantee for such assessments.
Liability for assessments may not be avoided by waiver
of the use or enjoyment of any common element or by
abandonment of the unit for which the assessments are
made.
Wis. Stat. § 703.165(2)(emphasis added). The statutory language

emphasized above indicates that in a voluntary grant, a new

owner is held jointly and severally liable for unpaid

assessments owed by the prior owner. Walworth State Bank relies

on this language to argue that the inverse must be true in an
involuntary grant, such as a sheriff's sale. Specifically,

Walworth State Bank's position is that in an involuntary grant,

a new owner cannot be held jointly and severally liable for the

outstanding assessments of the prior owner. However, we agree

with the court of appeals that the language in § 703.165(2)

pertaining to voluntary grants of property has no bearing on the

involuntary grant at issue here. The liability of a new owner

for the outstanding debt of the prior owner under the

circumstances of an involuntary grant is not directly addressed

in Chapter 703 and it is not this court's place to speak where

the legislature was silent.8

8
"The principle that a matter not covered is not covered is
so obvious that it seems absurd to recite it." Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
93 (2012). "Courts must take statutes as they find them . . . .
They are not the law-making body. They are not responsible for
omissions in legislation." Id. (citing R.W.M. Dias,
Jurisprudence 232 (4th ed. 1976)).

10
 No. 2014AP940

B. The Law of Foreclosure

¶16 Instead, we turn to pertinent statutory provisions

governing condominiums, the Foreclosure Judgment entered against

Abbey Springs in the underlying foreclosure action, and well-

established foreclosure law to render a decision. Chapter 703

of the Wisconsin Statutes, known as the Condominium Ownership

Act, governs condominiums. It explains that unpaid condominium

assessments "constitute a lien on the units on which they are

assessed" as long as certain statutory requirements are met.

Wis. Stat. § 703.165(3). Assessments are defined as "regular

and special assessments for common expenses and charges, fines,

or assessments against specific units or unit owners for damages

to the condominium or for penalties for violations of the

declaration, bylaws, or association rules." Wis. Stat.

§ 703.165(1).

¶17 Wisconsin Stat. § 703.165(5) also governs the priority

given to a lien for unpaid assessments. Applicable here is

§ 703.165(5)(b), which provides that "a first mortgage recorded
prior to the making of the assessment" has priority over a lien

for unpaid condominium assessments.

¶18 Here, it is undisputed that the former owners of Units

18 and 19 had unpaid condominium association assessments. As

Wis. Stat. § 703.165(3) indicates, these unpaid assessments

constituted a lien against the units. It is also undisputed

that Abbey Springs filed a claim for surplus in the foreclosure

action "based on a 'Statement of Condominium Lien'" it filed
against the former owners. Furthermore, the parties agree that
11
 No. 2014AP940

Walworth State Bank's interest, as the holder of a first

mortgage on the units, takes priority over Abbey Springs's lien

based on unpaid assessments. This position is supported by the

plain language of Wis. Stat. § 703.165(5)(b), which gives a

first mortgage holder priority over any lien for unpaid

assessments that was recorded after the first mortgage.

¶19 Prioritization of Walworth State Bank's first mortgage

over Abbey Springs's lien for unpaid assessments is reflected in

the Foreclosure Judgment entered by the circuit court in the

foreclosure action. In that action, the circuit court entered

default judgment against the unit owners and Abbey Springs.

Specifically, the circuit court ordered that the defendants,

including Abbey Springs, "after the filing of the Lis Pendens

herein, be forever barred and foreclosed of all right, title,

interest, lien or equity of redemption in and to said mortgaged

premises . . . ." Abbey Springs did not appeal the circuit

court's Foreclosure Judgment.

¶20 The circuit court's order in the foreclosure action
that eliminated "all right, title, interest, lien or equity of

redemption in and to" the property aligns with Chapter 846 of

the Wisconsin Statutes and the equitable purpose of foreclosure.

In Wisconsin, and across much of the United States, judicial

foreclosure is the available method of foreclosure. 1 Grant S.

Nelson et al., Real Estate Finance Law § 7:12, at 903 (6th ed.

2014). Generally speaking, Chapter 846 of the Wisconsin

Statutes sets forth a two-step procedure that governs the
foreclosure process. Shuput v. Lauer, 109 Wis. 2d 164, 171, 325
12
 No. 2014AP940

N.W.2d 321 (1982). The first step includes the judgment of

foreclosure and sale. Id. It is during this first step that a

circuit court determines "the parties' legal rights in the

underlying mortgage and obligation, including the right to a

deficiency judgment." Bank Mut. v. S.J. Boyer Const., Inc.,

2010 WI 74, ¶27, 326 Wis. 2d 521, 785 N.W.2d 462. Specifically,

Wis. Stat. § 846.01 addresses the first step in the foreclosure

process, the foreclosure judgment. Section 846.01(1) provides,

in pertinent part:

[I]n actions for the foreclosure of mortgages upon
real estate, if the plaintiff recover, the court shall
render judgment of foreclosure and sale, as provided
in this chapter, of the mortgaged premises or so much
of the premises as may be sufficient to pay the amount
adjudged to be due upon the mortgage and obligation
secured by the mortgage, with costs.
Id. This court has determined that § 846.01(1) "requires the

court to render judgment of foreclosure and sale in successful

foreclosure actions." Bank Mut., 326 Wis. 2d 521, ¶28.

¶21 The second step in foreclosure actions "carries into

effect and enforces the judgment of foreclosure and sale." Id.,

¶27. That is, after the judgment of foreclosure is entered and

sale of the property completed, additional statutory proceedings

take place to confirm the sale, determine the rights to surplus,

if any, and enter deficiency judgment, if applicable. See Wis.

Stats. §§ 846.162, 846.165, 846.167; see also Shuput, 109

Wis. 2d at 171.

¶22 In carrying out this two-step process, a circuit court
ensures that the basic objectives of a foreclosure action are

13
 No. 2014AP940

met. Secondary sources and Wisconsin case law have explained

the objective and function of foreclosure actions in various

ways:

The basic objective of an action to foreclose is to
enable the mortgage creditor to get his debt paid out
of the security. To accomplish this end[,] it is the
purpose of the foreclosure sale to end the right to
redeem of all persons who have interests in the
property subject to the mortgage and to vest in the
purchaser on the sale the title to the property as it
stood at the time of the execution of the mortgage.
George E. Osborne, Handbook on the Law of Mortgages § 319, at

669 (2d ed. 1970). This court has explained that "the judgment

of foreclosure and sale determines the rights of the parties and

disposes of the entire matter in litigation . . . ." Shuput,

109 Wis. 2d at 172. Furthermore, the Restatement (Third) of

Property addresses the effect of foreclosure actions on lien

priorities: "A valid foreclosure of a mortgage terminates all

interests in the foreclosed real estate that are junior to the

mortgage being foreclosed and whose holders are properly joined

or notified under applicable law." Restatement (Third) of

Property (Mortgages) § 7.1 (1997) (emphasis added). In regard

to the first priority mortgage, this court has explained that,

generally, "a proper foreclosure proceeding, when confirmed,

satisfies the debt [if there are sufficient funds] and

extinguishes the mortgage." Winter v. Knaak, 236 Wis. 367, 370,

294 N.W. 488 (1940). With regard to the rights of junior

lienholders such as Abbey Springs, the court of appeals has
stated:

14
 No. 2014AP940

[W]hen property is sold at a foreclosure sale, the
property is transferred to the purchaser who receives
the interest of the mortgagor and whatever interest
the other parties to the suit possessed at the
commencement of the action. As a result, those who
were parties to the action can no longer assert any
claim or right of interest against the property. The
interest of such parties is deemed "foreclosed,"
leaving them to look only to sale proceeds for
satisfaction of their claim.
First Wis. Trust Co. v. Rosen, 143 Wis. 2d 468, 472-73, 422

N.W.2d 128 (Ct. App. 1988) (citations omitted). In sum,

secondary sources and Wisconsin case law demonstrate that

foreclosure actions are designed to: (1) bring together

creditors' claims to a property for disposition in a single

proceeding; (2) apply proceeds from the foreclosure sale to

satisfy the liens of those parties to the foreclosure action in

order of priority; and (3) extinguish unsatisfied junior

lienholders' rights9 to the property so that title transfers

unencumbered to the new purchaser.

¶23 Abbey Springs attempts to evade the effect of the

Foreclosure Judgment in this case by acknowledging that its lien

was extinguished in the foreclosure action but claiming that the

underlying debt——the unpaid assessments——survives due to its

connection to Units 18 and 19. Indeed the underlying debt does

survive and nothing in the Foreclosure Judgment prevents Abbey

Springs from suing the former unit owners to recover that debt.

What Abbey Springs is foreclosed from doing is perpetually

9
Junior lienholders' rights are so extinguished when the
junior lienholders are made parties to the foreclosure action.

15
 No. 2014AP940

saddling the property and all subsequent owners with debt owed

by the former unit owners unless and until that debt is paid.

Not only did the Foreclosure Judgment extinguish the "lien" it

also "forever barred and foreclosed" all "right" and all

"interest" of Abbey Springs in and to the property. The circuit

court possessed both statutory and equitable power to effectuate

this comprehensive foreclosure of rights and interests.

¶24 In carrying out the two-step foreclosure procedure,

circuit courts are not limited to the powers and duties

expressly provided in Chapter 846. "Foreclosure proceedings are

equitable in nature, and the circuit court has the equitable

authority to exercise discretion throughout the proceedings."

GMAC Mortg. Corp. v. Gisvold, 215 Wis. 2d 459, 480, 572 N.W.2d

466 (1998). In other words, the foreclosure judgment, in

accordance with Wis. Stat. § 846.01 as well as the equitable

authority of the circuit court, determines the rights of the

parties with interests in the foreclosed property.

¶25 The purpose of foreclosure law and the statutory
scheme governing foreclosure in Wisconsin guide our decision.

As discussed, the purpose of foreclosure is to allow a mortgagee

to collect what it is owed through, generally speaking, the sale

of the mortgaged property. See Osborne, supra § 319, at 669.

To achieve this purpose, a foreclosure action determines the

rights of the parties to the subject property and restores "the

title to the property as it stood at the time of the execution

of the mortgage." Id. Here, but for Walworth State Bank's
payment of the former owners' unpaid assessments, title would
16
 No. 2014AP940

not have been so restored because the former owners' debt, which

Abbey Springs claims survives the foreclosure action, would

continue to affect the current owners' ability to utilize the

recreational facilities. Moreover, Chicago Title Company issued

a commitment for title insurance to the then-prospective owners

containing an exception from coverage for the unpaid

assessments.

¶26 In accordance with Wis. Stat. § 846.01 and its

equitable powers, the circuit court eliminated all rights of

Abbey Springs and the former owners to the property in the

foreclosure action. However, Abbey Springs's Membership and

Guest Policy contravenes the circuit court's order in the

foreclosure action by reviving an interest in the units that the

circuit court eliminated. The policy does so because unpaid

assessments attributable to the units remain attributable to the

units even after foreclosure. This is contrary to both the

judgment of foreclosure, which eliminated not only the lien but

all of Abbey Springs's rights and interests in and to the
property in question, and well-established foreclosure law. As

a result, the condominium policy as applied in this case

violates both the purpose of foreclosure and the circuit court's

Foreclosure Judgment.

¶27 The fact that Walworth State Bank had no legal

obligation to pay the former owners' outstanding assessments

after foreclosure does not change our decision. The connection

Walworth State Bank had to the outstanding assessments was
through its ownership of the property after purchase at the
17
 No. 2014AP940

sheriff's sale. Abbey Springs's policy improperly tethers the

unpaid assessments to the unit itself by prohibiting subsequent

owners from utilizing the recreational facilities. This is an

assertion of a right against the property itself regardless of

whether or not Abbey Springs would have been able to legally

collect the unpaid assessments from Walworth State Bank or a

later owner. We agree with the dissent that "a lien cannot

exist independent of a debt." Dissent, ¶56. However, here, as

we have explained, Abbey Springs's policy ties the unpaid

assessment debt——owed by the former owners of the units——to the

units themselves, thereby impermissibly reviving an interest

extinguished by the foreclosure action. The dissent disregards

the fact that not only were liens extinguished by the

Foreclosure Judgment but also "all right, title, interest, lien

or equity of redemption" were also eliminated.

¶28 Additionally, contrary to the court of appeals'

suggestion otherwise, Abbey Springs's policy cannot be

characterized as a pay-to-play policy because it requires the
new owners to continue to pay monthly assessments for the

recreational facilities regardless of whether or not they use

the facilities or are prohibited from using them. Under the

Bylaws, new owners must continue to pay monthly assessments for

the recreational facilities even if the Membership and Guest

Policy prohibits them from setting foot in any of the

recreational facilities due to the prior owners' unpaid

assessments. If the Membership and Guest Policy prohibited only
current owners from utilizing recreational facilities when those
18
 No. 2014AP940

current owners failed to pay assessments, we might be able to

characterize the policy as a pay-to-play policy. However, the

Bylaws require owners to pay assessments for the recreational

facilities while, at the same time, the Membership and Guest

Policy prohibits owners from using the recreational facilities

based on the unpaid assessments of prior owners. This is not a

pay-to-play policy.

¶29 We recognize that condominium owners are often subject

to a variety of enforceable use restrictions imposed under the

declaration and bylaws pertaining to their units. See, e.g.,

Wis. Stats. §§ 703.09(1)(g), 703.10(3). However, we disagree

with the dissent's assertion that under our holding no use

restriction imposed by a condominium or homeowners association

could survive a foreclosure action. See dissent, ¶¶67-69. Our

holding does not extend to enforceable use restrictions and is

far more narrow than the dissent suggests. Abbey Springs's

Membership and Guest Policy cannot survive a foreclosure action

to the extent it restricts a current owner's use of certain
recreational facilities based on the failure of the prior owners

to pay their debts. Such a policy ties the debts of the prior

owners to the units, in violation of well-established

foreclosure law as reflected in the Foreclosure Judgment. A use

restriction that prohibits dogs on condominium property, for

example, would not depend on a prior owner's actions and would

not result in a foreclosed debt forever haunting a particular

unit instead of following the prior owners to whom the debt
belongs. The same could be said about the use restriction on
19
 No. 2014AP940

renting upheld by Apple Valley Gardens Ass'n, Inc. v. MacHutta,

2009 WI 28, ¶3, 316 Wis. 2d 85, 763 N.W.2d 126.10 The dissent

disregards the obvious fact that enforceable use restrictions

generally apply to all property owners equally and not just to

those who have the misfortune of purchasing units from prior

owners who left unpaid debts behind.

III. Conclusion

¶30 We hold that Abbey Springs's Membership and Guest

Policy violates well-established foreclosure law and the

Foreclosure Judgment entered against Abbey Springs. It does so

by tethering unpaid condominium assessments to the units, which

effectively results in Abbey Springs asserting a right against

the property that the Foreclosure Judgment eliminated. Under

the undisputed facts, Walworth State Bank is entitled to summary

judgment as a matter of law. Accordingly, we reverse the court

10
Comparing the policy at issue in this case with the
rental restriction at issue in Apple Valley Gardens Ass'n, Inc.
v. MacHutta, 2009 WI 28, 316 Wis. 2d 85, 763 N.W.2d 126, is not
helpful considering that Apple Valley did not involve a
foreclosed property or even a sale of a property. Id., ¶9. In
Apple Valley we rejected the argument that a restriction on
renting must appear in a condominium's declaration, rather than
its bylaws, in order to be valid. Id., ¶¶1, 3. We also held
that the specific condominium declaration at issue did not
create a right to rent and that a restriction on renting did not
render title unmarketable under Wis. Stat. § 703.10(6). Id.,
¶3. Our holding that the rental restriction at issue in Apple
Valley was valid has no bearing on the application of the
Membership and Guest Policy in the context of the foreclosed
units.

20
 No. 2014AP940

of appeals and remand to the circuit court to enter an order

consistent with our opinion.

By the Court.—The decision of the court of appeals is

reversed, and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.

21
 No. 2014AP940.ssa

¶31 SHIRLEY S. ABRAHAMSON, J. (dissenting). I agree

with the result reached by the court of appeals. The majority

opinion asserts that Abbey Springs' policy violates "well-

established foreclosure law."1 Asserting that something is

"well-established" does not mean it is, in fact, "well-

established." The majority opinion fails to prove its

assertion.

¶32 Let's look at the facts. Abbey Springs, a condominium

association, adopted a policy barring an owner of a condominium

unit from using certain recreational facilities if "regular

monthly or special assessment[s]" are more than 90 days past

due, unless the unpaid assessments (including a prior owners'

unpaid assessments) are paid.

¶33 Abbey Springs' policy provides in relevant part:

If any regular monthly or special assessment against
any Unit is delinquent for more than ninety (90) days
past its due date, the owner or owners of that Unit,
and any subsequent owners, shall automatically and
without notice be suspended from any use or occupation
of the Yacht Club, Clubhouse Grille, Pool Café,
fitness facilities, golf facilities, and boat
launching facilities, until such time as assessments
are paid in full.
Majority op., ¶4.

¶34 In the instant case, the previous owners of the two

condominium units at issue were delinquent in paying their

mortgage and their assessments. Walworth State Bank, the

mortgagee, brought a foreclosure action naming the unit owners
1
See majority op., ¶¶2, 13 n.7, 16, 26, 29, 30.

1
 No. 2014AP940.ssa

and Abbey Springs as defendants. Abbey Springs was named as a

defendant because Abbey Springs had a lien for unpaid

assessments secured against the units pursuant to Wis. Stat.

§ 703.165(3).2

¶35 The circuit court entered a judgment in the

foreclosure action providing that the owners of the foreclosed

units and Abbey Springs and all persons claiming under them were

"forever barred and foreclosed of all right, title, interest,

lien or equity of redemption" in and to the units. Walworth

State Bank bought the units at issue in a sheriff's sale.

¶36 The question presented is whether Abbey Springs'

policy barring an owner of a condominium unit from using certain

2
Wisconsin Stat. § 703.165(3) states:

All assessments, until paid, together with interest on
them and actual costs of collection, constitute a lien
on the units on which they are assessed, if a
statement of lien is filed within 2 years after the
date the assessment becomes due. The lien is
effective against a unit at the time the assessment
became due regardless of when within the 2-year period
it is filed. A statement of condominium lien is filed
in the land records of the clerk of circuit court of
the county where the unit is located, stating the
description of the unit, the name of the record owner,
the amount due and the period for which the assessment
was due. The clerk of circuit court shall index the
statement of condominium lien under the name of the
record owner in the judgment and lien docket. The
statement of condominium lien shall be signed and
verified by an officer or agent of the association as
specified in the bylaws and then may be filed. On
full payment of the assessment for which the lien is
claimed, the unit owner shall be entitled to a
satisfaction of the lien that may be filed with the
clerk of circuit court.

2
 No. 2014AP940.ssa

recreational facilities if "regular monthly or special

assessment[s]" are more than 90 days past due, unless the unpaid

assessments (including a prior owners' delinquent assessments)

are paid, may be enforced against the purchaser of the

condominium units following a foreclosure sale. For ease of

discussion, I will refer to this policy restricting access to

the recreational facilities as "Abbey Springs' recreational use

policy."

¶37 The majority opinion asserts that Abbey Springs'

recreational use policy violates Wisconsin law in two respects:

1. Abbey Springs' recreational use policy "impermissibly

revives a lien on the condominium units that was

eliminated by the foreclosure action." See majority

op., ¶1.

2. Abbey Springs' recreational use policy violates the

circuit court's order for judgment on foreclosure.

The judgment eliminated "all right, title, interest,

lien or equity of redemption" of Abbey Springs in and
to the foreclosed units. See majority op., ¶¶2, 30.

¶38 Everyone agrees that the statutory lien against the

units for the unpaid assessments was extinguished in the

foreclosure action.3 Everyone agrees that a purchaser of the

units at issue is not personally liable for prior unpaid

assessments.4

3
See majority op., ¶¶16-29.
4
See majority op., ¶¶2, 27

3
 No. 2014AP940.ssa

¶39 Although the statutory lien is gone and the new owners

of the units are not personally liable for prior unpaid

assessments, the majority opinion states (in conclusory fashion

and without citation to authority) that Abbey Springs'

recreational use policy "impermissibly revives a lien on the

condominium units that was eliminated by the foreclosure

action,"5 "improperly tethers the unpaid assessments to the unit

itself,"6 and asserts "a right against the property."7

¶40 I disagree with the majority opinion. This "revived,"

"tethered," resurrected lien "haunting a particular unit" is a

figment of the majority opinion's imagination not traceable to

any statute or common law principle. The statutory lien is

gone; no lien exists to haunt, or to be revived, tethered, or

resurrected.

¶41 Nevertheless, the majority opinion concludes that

Abbey Springs' recreational use policy amounts to Abbey Springs'

claiming a "right, title, interest, lien or equity of redemption

in and to" the foreclosed units that was barred by the judgment
of foreclosure. The majority opinion does not explain what

"right, title, interest, lien or equity of redemption in and to"

the foreclosed units Abbey Springs is claiming. The majority

opinion cannot explain itself because Abbey Springs is not

5
Majority op., ¶1.
6
Majority op., ¶27.
7
Majority op., ¶¶27, 30.

4
 No. 2014AP940.ssa

claiming a "right, title, interest, lien or equity of redemption

in and to" the foreclosed units.

¶42 With respect to the judgment of foreclosure, Abbey

Springs does not claim a lien on the foreclosed units. Abbey

Springs' recreational use policy does not in any way revive the

extinguished lien.

¶43 Abbey Springs does not claim an equity of redemption

in and to the foreclosed units.

¶44 Abbey Springs is not using its recreational use policy

to claim a right, title, or interest in and to the foreclosed

units. Abbey Springs is, as several briefs point out, using

access to the recreational facilities, which are not common

elements of the condominium at issue, as "leverage to compel

satisfaction of all [assessments in] arrears."8

¶45 Restrictions on the use of the unit itself are

permissible under Wisconsin law.9 If use of the unit may be

restricted, surely a restriction on the use of the association's

recreational facilities is permissible, even if used as leverage
to compel the payment of delinquent assessments.

¶46 In Part II, below, I conclude that Abbey Springs'

recreational use policy does not affect the marketable title to

the units.

8
See Highland Lakes Country Club & Cmty. Ass'n v. Franzino,
892 A.2d 646, 655 (N.J. 2006) (allowing the use of such leverage
in a similar situation).
9
See Apple Valley Gardens Ass'n, Inc. v. MacHutta, 2009 WI
28, ¶18, 316 Wis. 2d 85, 763 N.W.2d 126; accord Wis. Stat.
§ 703.10(1), (3).

5
 No. 2014AP940.ssa

¶47 In sum, the majority opinion contravenes basic

principles of real property law, foreclosure law, and

condominium law.

¶48 For the reasons set forth, I would affirm the court of

appeals and hold that Abbey Springs' recreational use policy is

enforceable.

I

¶49 Condominium associations' expenses are funded largely

through "assessments," which an association may levy among unit

owners. See Wis. Stat. § 703.16(2)(a).

¶50 The significant problem posed for condominium

associations by unpaid assessments is the issue underlying the

instant case.

¶51 The problem, simply stated, is that unless a

condominium association can recover delinquent assessments from

the delinquent unit owner (or, under a policy such as Abbey

Springs has adopted, from a subsequent owner), the cost of the

delinquent assessments will be passed on to the owners of other
condominium units. As a Report of the Joint Editorial Board for

Uniform Real Property Acts explained:

If some owners do not pay their proportionate share of
common expenses, the association will be forced to
shift the burden of delinquent assessments to the
remaining unit owners through increased assessments or

6
 No. 2014AP940.ssa

reduced services and maintenance, potentially
threatening property values within the community.10
¶52 To enable a condominium association to collect unpaid

assessments, Wis. Stat. § 703.165(3) creates a lien on a unit

for certain unpaid assessments.11 This statutory lien was

extinguished in the foreclosure action.12 Everybody agrees the

statutory lien is extinguished. No ifs, ands, or buts.

¶53 To further address the problem of unpaid assessments

and the limitations of the statutory lien for unpaid

assessments, Abbey Springs adopted its recreational use policy,

restricting access to Abbey Springs' recreational facilities as

leverage to compel a unit owner to pay a prior owner's

delinquent assessments. Everyone, including Walworth State

Bank, was notified of Abbey Springs' recreational use policy.

¶54 The parties agree, and the majority opinion

acknowledges, that under Abbey Springs' recreational use policy,

10
The Six-Month 'Limited Priority Lien' for Association
Fees Under the Uniform Common Interest Ownership Act, at 1 (June
1, 2013), available at
http://www.uniformlaws.org/shared/docs/jeburpa/2013jun1_JEBURPA_
UCIOA%20Lien%20Priority%20Report.pdf; see also Wisconsin
Condominium Law Handbook, § 5.36 (4th ed. 2013).
11
Wisconsin Stat. § 703.165 provides, among other things,
that owners are liable for all assessments "coming due while
owning a unit" and that "[a]ll assessments, until paid, together
with interest on them and actual costs of collection, constitute
a lien on the units on which they are assessed, if a statement
of lien is filed within 2 years after the date the assessment
becomes due." Wis. Stat. § 703.165(2), (3) (emphasis added).
This lien is inferior to a first mortgage. See Wis. Stat.
§ 703.165(5)(b).
12
See majority op., ¶23.

7
 No. 2014AP940.ssa

an owner of a unit "ha[s] no legal obligation to pay the former

owners' outstanding assessments after foreclosure . . . ."13 In

other words, Walworth State Bank (and any person purchasing the

units from the Bank) is not liable for the prior owner's unpaid

assessments.14 Refusing to pay the prior owner's delinquent

assessments results only in the new owner's exclusion from Abbey

Springs' recreational facilities.

¶55 Nevertheless, the majority opinion concludes that

Abbey Springs' recreational use policy "impermissibly revives a

lien on the condominium units that was eliminated by the

foreclosure action."15

¶56 No lien was revived under Abbey Springs' recreational

use policy. The "well-established law" is that a lien cannot

exist independent of a debt.16 A lien secures payments for

13
Majority op., ¶27.
14
See Walworth State Bank v. Abbey Springs Condo. Ass'n,
Inc., No. 2014AP940, unpublished slip op., ¶18 (Wis. Ct. App.
Mar. 26, 2015) ("Nothing in Abbey Springs' policy gave Abbey
Springs the right to pursue recovery of the unpaid assessments
from [the Bank].").
15
Majority op., ¶1.
16
Dorr v. Sacred Heart Hosp., 228 Wis. 2d 425, 437, 597
N.W.2d 462 (Ct. App. 1999) (defining a lien as "a 'Qualified
right of property which a creditor has in or over specific
property of his debtor . . . .' Because a lien is a right to
encumber property until a debt is paid, it presupposes the
existence of a debt.") (quoting Black's Law Dictionary 832 (5th
ed. 1979)) (emphasis in original).

This court has endorsed Dorr's analysis of a lien, stating:

Dorr's analysis began with the proposition that a lien
"presupposes the existence of a debt." 228 Wis. 2d at
(continued)
8
 No. 2014AP940.ssa

debts due the lienholder and facilitates the satisfaction of

that obligation.

¶57 The majority opinion acknowledges this "well-

established" law, but does not recognize its importance in the

instant case.17

¶58 In the instant case, Walworth State Bank and the new

owners of the foreclosed units are not indebted to Abbey Springs

for the past owners' unpaid assessments. The new owners are not

personally liable to Abbey Springs for any past unpaid

assessments. The prior owners of the units remain indebted to

Abbey Springs for unpaid assessments they incurred while

owners.18 Stated simply, the foreclosure action severed the debt

of the prior owners for unpaid assessments from the collateral;

the debt remained that of the prior owners and the collateral

was gone.

¶59 The majority opinion invents a "straw lien" and then

blows it down, concluding that Abbey Springs' recreational use

437, 587 N.W.2d 462. That proposition is deeply
rooted in our jurisprudence, see Boorman v. Wis.
Rotary Engine Co., 36 Wis. 207, 212-13 (1874), and
widely accepted. See 51 Am. Jur. 2d Liens § 13
(2011).

Gister v. Am. Family Mut. Ins. Co., 2012 WI 86, ¶51, 342
Wis. 2d 496, 818 N.W.2d 880.
17
Majority op., ¶27.
18
See majority op., ¶23; see also Badger III Ltd. P'ship v.
Howard, Needles, Tammen & Bergendoff, 196 Wis. 2d 891, 898-99,
539 N.W.2d 904 (Ct. App. 1995) (recognizing that a debt
unsatisfied in a foreclosure action and sheriff's sale survives
the foreclosure).

9
 No. 2014AP940.ssa

policy violates "well-established foreclosure law."19 The

majority opinion does not explain what "well-established

foreclosure law" Abbey Springs' recreational use policy

violates.

¶60 I turn now to the second rationale of the majority

opinion: Abbey Springs' recreational use policy violates the

circuit court's order for judgment on foreclosure. The judgment

eliminated "all right, title, interest, lien or equity of

redemption" of Abbey Springs in and to the foreclosed units.

See majority op., ¶¶2, 30.

¶61 I agree with the majority opinion that the five

elements of the foreclosure judgment——right, title, interest,

lien, and equity of redemption——should be analyzed.20 I have

already explained that Abbey Springs does not claim, and is not

entitled to claim, a lien in and to the foreclosed units. Nor

does Abbey Springs claim an equity of redemption in and to the

foreclosed units. So what right, title, or interest does Abbey

Springs claim in and to the foreclosed units?
¶62 The answer is that Abbey Springs does not claim any

right, title, or interest in and to the foreclosed units. Abbey

Springs' recreational use policy restricts the unit owners'

access to certain recreational facilities, as several briefs

claim, as leverage to compel satisfaction of all assessments in

arrears.

19
Majority op., ¶2.
20
See majority op., ¶27.

10
 No. 2014AP940.ssa

¶63 If an owner wants to live in a condominium unit at

Abbey Springs without using the recreational facilities, the

owner need not pay any prior owner's delinquent assessments.21

¶64 A restriction on the use of recreational facilities

used as leverage to compel satisfaction of all assessments in

arrears is not, as the majority opinion claims, a right, title,

or interest by Abbey Springs in and to the foreclosed units.22

This court has allowed condominium associations to restrain an

owner's use of a unit. If a condominium association can

restrict an owner's use of a unit, it surely can restrict the

use of recreational facilities.

¶65 In Apple Valley Gardens Ass'n, Inc. v. MacHutta, 2009

WI 28, ¶24, 316 Wis. 2d 85, 763 N.W.2d 126, the court held that

a restriction on renting units was a "reasonable rule[ or]

regulation[] governing the use of the units."

¶66 An association's prohibition on the rental of a

condominium unit is permissible under Wis. Stat. § 703.10(1) and

(3), which permit a condominium association to adopt rules or
amend its bylaws to impose restrictions or requirements

21
The owners, like other condominium owners, will still be
responsible for paying assessments coming due while they own the
unit. They will not be responsible for any prior owners'
delinquent assessments. See Wis. Stat. § 703.165(2) ("A unit
owner shall be liable for all assessments, or installments
thereof, coming due while owning a unit . . . .").
22
See majority op., ¶27.

11
 No. 2014AP940.ssa

respecting the use of the units.23 If the rental restriction on

the use of a unit does not violate the right, title, or interest

of an owner of a unit, surely a restriction or requirement

limiting the use of recreational facilities24 does not violate

the right, title, or interest of an owner of a unit.25

23
Wisconsin Stat. § 703.10(1) (with added emphasis)
provides: "The administration of every condominium shall be
governed by bylaws. Every unit owner shall comply strictly with
the bylaws and with the rules adopted under the bylaws, as the
bylaws or rules are amended from time to time . . . ."
Wisconsin Stat. § 703.10(3) provides: "The bylaws also may
contain any other provision regarding the management and
operation of the condominium, including any restriction on or
requirement respecting the use and maintenance of the units and
the common elements."

See also Wis. Stat. § 703.15(1), which provides that the
association's board of directors generally governs the
association's affairs. The association has the power to, among
other things, "[e]xercise any other power conferred by the
condominium instruments or bylaws." See Wis. Stat.
§ 703.15(3)(a)4.

The condominium association is created by a declaration on
file with the register of deeds, bylaws, and policies adopted by
the board of directors. See Wis. Stat. §§ 703.01(8), 703.07(1),
703.09, 703.10(1); Wisconsin Condominium Law Handbook, § 5.2
(4th ed. 2013).
24
Underscoring this conclusion, Abbey Springs' recreational
facilities are not common elements of the condominium in which
the units at issue are located. See majority op., ¶3.
25
The Wisconsin Condominium Law Handbook, § 5.50 (4th ed.
2013), describes Apple Valley as "indicat[ing] that restrictions
do not violate the provisions of the Condominium Ownership Act
and impl[ying] that broader restrictions may be enforceable. In
addition, the decision extends to the rules and regulations as a
source of restrictions." Abbey Springs' recreational use policy
is one such rule or regulation.

12
 No. 2014AP940.ssa

¶67 A logical extension of the majority opinion's

conclusion that Abbey Springs' recreational use policy violates

the judgment of foreclosure is that restrictions on the use of a

unit by a condominium association in its declaration, bylaws, or

policies (or similar restrictions adopted by a homeowner's

association) do not survive a judgment of foreclosure.

¶68 Under this reading of the majority opinion, a

restriction on renting condominium units contained in the

association's bylaws would not survive a foreclosure action,

because it perpetually saddles the property and all subsequent

owners with the restriction on renting.26 This court concluded

in Apple Valley, however, that such restrictions on renting are

permissible, see 316 Wis. 2d 85, ¶31, and the court of appeals

has recognized that such restrictions remain in force even after

a foreclosure. See Bankers Tr. Co. of Cal. v. Bregant, 2003 WI

App 86, ¶15, 261 Wis. 2d 855, 661 N.W.2d 498 (recognizing that

although an action to enforce a bylaw restriction on rental was

premature, it was "uncontroverted that . . . the bylaw
restriction of owner-occupancy was enforceable" following a

foreclosure sale).

¶69 Moreover, under this logical extension of the majority

opinion, restrictions imposed by homeowners' associations

regarding, for instance, repair and maintenance of a home,

architecture of homes, or the placement of homes would similarly

be imperiled by a foreclosure action. Courts have concluded

26
See majority op., ¶23.

13
 No. 2014AP940.ssa

that restrictions imposed by a homeowners' association survive a

foreclosure sale. See Thirteen S. Ltd. v. Summit Vill., Inc.,

866 P.2d 257, 261 (Nev. 1993) (holding that a homeowners'

association's covenants, conditions, and restrictions were not

extinguished in a tax foreclosure sale).

¶70 The majority opinion disavows this logical extension

of its holding, stating that restrictions like "[a] use

restriction that prohibits dogs on condominium property . . ."

are permissible because they do not "depend on a prior owner's

actions and would not result in a foreclosed debt forever

haunting a particular unit instead of following the prior owners

to whom the debt belongs."27 The majority opinion continues,

asserting that such restrictions are permissible because they

"generally apply to all property owners equally and not just to

those who have the misfortune of purchasing units from prior

owners who left unpaid debts behind."28

¶71 This line of reasoning is flawed for several reasons.

¶72 First, as I have explained above, Abbey Springs'
recreational use policy does not create a spectral debt,

"haunting" the unit until paid. A subsequent owner is free to

pay or not pay the prior owner's past due assessments.

¶73 Second, Abbey Springs' recreational use policy,

despite the majority opinion's view, does "generally apply to

27
Majority op., ¶29.
28
Majority op., ¶29.

14
 No. 2014AP940.ssa

all property owners equally . . . ."29 That is, all unit owners

are subject to the same restriction, and any unit owners

(regardless of how they purchased the unit) will be barred from

the recreational facilities if there are unpaid assessments

against the unit.

¶74 Third, and importantly, a purchaser buys a condominium

unit on notice of the condominium association's (or homeowners'

association's) declaration, bylaws, and policies. Prospective

purchasers who want to use the recreational facilities and are

unhappy about paying past due assessments may choose to purchase

the unit at a lower price or may chose to buy a different

property. Although the majority opinion characterizes this

situation as a "misfortune,"30 the buyer has a choice.

¶75 For the reasons stated, I conclude that Abbey Springs'

recreational use policy does not constitute a lien on the

foreclosed units and does not violate the judgment of

foreclosure.

II
¶76 Finally, addressing an argument made by Walworth State

Bank (and not resolved by the majority opinion),31 I conclude

that Abbey Springs' recreational use policy does not render

title to the foreclosed units unmarketable.

29
Majority op., ¶29.
30
See majority op., ¶29
31
See majority op., ¶13 n.7.

15
 No. 2014AP940.ssa

¶77 Title is marketable if it "can be held in peace and

quiet; not subject to litigation to determine its validity; not

open to judicial doubt." Apple Valley, 316 Wis. 2d 85, ¶27

(quotation omitted).

¶78 Walworth State Bank argues that it is entitled to

summary judgment on its declaratory judgment action because

Abbey Springs' policy renders the "title [to the foreclosed

units] unmarketable, or at the very least, adversely affects its

marketability."

¶79 Wisconsin Stat. § 703.10(6) prohibits condominium

bylaws from affecting the transfer of title to a condominium

unit. Wisconsin Stat. § 703.10(6) states: "Title to a

condominium unit is not rendered unmarketable or otherwise

affected by any provision of the bylaws or by reason of any

failure of the bylaws to comply with the provisions of this

chapter."

¶80 This provision is "a protection of the title and is

not a vehicle for a finding of impairment." Apple Valley, 316
Wis. 2d 85, ¶29 (citing Bankers Tr., 261 Wis. 2d 855, ¶¶18-19)

(emphasis added).

¶81 Nevertheless, Walworth State Bank argues that Abbey

Springs' recreational use policy affects the quality of the

unit's title and its marketability.

¶82 In Apple Valley, we addressed whether a condominium

bylaw prohibiting the rental of a condominium unit rendered the

unit's title unmarketable. The Apple Valley court determined
that although the rental restriction affected the use of the

16
 No. 2014AP940.ssa

property, it did not affect the owner's ability to convey title.

Apple Valley, 316 Wis. 2d 85, ¶28.

¶83 The same is true in the instant case. Although

Walworth State Bank presented evidence that Abbey Springs'

recreational use policy reduced the market value of the units,

it presented no evidence that the restriction affected Walworth

State Bank's ability to convey its title.

¶84 Walworth State Bank has not presented any evidence

that the unavailability of the recreational facilities, which

were not part of the common areas and were available only for an

additional cost, rendered the title to the foreclosed units

unmarketable.

¶85 Following the foreclosure, Walworth State Bank took

title to the units free and clear of "'all right, title,

interest, lien or equity of redemption' in and to the

property."32

¶86 Abbey Springs' recreational use policy simply allows

Abbey Springs to exclude an owner from access to Abbey Springs'
recreational facilities unless delinquent assessments are paid.

It does not affect the owner's ability to convey title.

* * * *

¶87 Because I conclude that Abbey Springs' policy does not

violate "well-established foreclosure law" or "effectively

revive[] a lien against" the units, and that Walworth State Bank

took title to the units following the foreclosure free of "all

32
Majority op., ¶6 (quoting the foreclosure judgment).

17
 No. 2014AP940.ssa

right, title, interest, lien or equity of redemption" held by

Abbey Springs, I would affirm the court of appeals and remand to

the circuit court with instructions to grant summary judgment in

favor of Abbey Springs.

¶88 For the reasons set forth, I dissent and write

separately.

¶89 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissent.

18
 No. 2014AP940.ssa

1