Picture this: an urban condominium complex and neighboring apartment building, built by the same developer, with one parking garage between the two. The condominium owners were led to believe that the garage belonged to them as a common element; however, just before turning over control to the unit owners, the developer/declarant secretly recorded an easement over 40 parking spaces for the benefit of his neighboring apartment building (essentially, giving an easement to himself). The developer sat tight for a few years, and then asserted his easement rights out of the blue. The condominium association, on the advice of the Husch Blackwell Condominium & HOA Law Team, recorded a statement terminating the self-serving easement. The developer sued the association, and following a win for the association in circuit court on summary judgment, the developer appealed. When the appellate court also found in favor of the association, the developer took the case to the Wisconsin Supreme Court, which denied review, siding again with the association. The easement was terminated, the association was able to keep its parking spaces with no strings attached, and the developer’s self-serving efforts were thwarted.
Lesson: Developers sometimes draft documents for their own benefit, but the law places limits on this “power” to protect associations. Good condominium lawyers know those legal limits and can enforce owners’ and associations’ rights.