In 2002, the Wisconsin Supreme Court said “NO” to Dockominiums, holding that the conversion of a marina to a dockominium form of ownership violated the public trust doctrine because the owner attempted to convey condominium property contrary to Wis. Stat. § 30.133 (1995-96), which prohibits certain transfers of riparian rights. (ABKA Limited Partnership, et. al., vs. Wisconsin Department of Natural Resources et., al., 2002 WI 106).
In 2002, the Wisconsin Supreme Court said “NO” to Dockominiums, holding that the conversion of a marina to a dockominium form of ownership violated the public trust doctrine because the owner attempted to convey condominium property contrary to Wis. Stat. § 30.133 (1995-96), which prohibits certain transfers of riparian rights. (ABKA Limited Partnership, et. al., vs. Wisconsin Department of Natural Resources et., al., 2002 WI 106).
The developer in the case sold approximately 185 boat slips as limited common elements, each slip being associated with a unit consisting of a four-by-five-by-six inch lock box. The developer then suspended the sales to await the outcome of the case. The outcome of the case was not pretty – the Wisconsin Supreme Court determined that the lock boxes were not "intended for any type of independent use" within the meaning of § 703.02(15). Rather the lock boxes were “phantom units” that did not meet with the statutory definition; they existed for the purpose of conveying the common elements and appurtenant riparian rights.
Thus finding that there were no valid condominium units, the court found that the transfer of riparian rights under the declaration was in violation of §30.133, which provides that "no owner of riparian land that abuts a navigable water may convey, by easement or by a similar conveyance, any riparian right in the land to another person, except for the right to cross the land in order to have access to the navigable water."
The ripple of this case could be heard throughout the real estate community, from title insurance underwriters and agents who insured the dockominium sales to individuals and entities who purchased the dockominiums. But relief has come in the form of 2007 Wisconsin Act 20 enacted on October 26, 2007, which amended §30.133 and created §30.1335.
Section 30.133 was amended to read: “Beginning on April 9, 1994, and except as provided in s. 30.1335, no owner of riparian land that abuts a navigable water may convey, by grant by an easement or by a similar conveyance, any riparian right in the land to another person, except for the right to cross the land in order to have access to the navigable water. This right to cross the land may not include the right to place any structure or material, including a boat docking facility, as defined in s. 30.1335 (1) (a), in the navigable water.”
Section 30.1335 was created to bless marina condominium declarations recorded before June 1, 2007, stating in pertinent part that “…a declaration that creates or purports to create a marina condominium and that is recorded before June 1, 2007, shall be effective in creating the marina condominium regardless of subsequent activity affecting the declaration.” of §30.1335(3), Wis. Stats. Under §30.1335(5), a valid marina condominium declaration may not be amended to increase the size of the boat docking facility or the size or the number of boat slips in a boat docking facility.
As for marina condominium declarations recorded on or after June 1, 2007, the declaration is “... invalid and establishes ownership of the riparian land as a tenancy in common that is held by the owners of the marina condominium units.” §30.1335(2), Wis. Stats.
Sail away...