Commonly Asked Legal Questions

Our legal partner, Axley, has compiled some commonly submitted legal questions.  You can find answers relating to the following topics: Advertising & Copyrights, Insurance, Liens, Claims, and Zoning & Other Regulations.

Advertising & Copyrights

My builder put a photograph of my house on his website!

Question: It is illegal to use pictures of current projects on a website or Facebook page without the written permission of the customer?

Answer:  The question is not whether it is legal or not, but who owns the copyright of the house.  If the homebuilder is a contractor of the owner, then the copyright is presumed to be with the homebuilder.  However, if someone other than the homebuilder drew the plans, then the copyright is presumed to be the with the designer. As the homebuilder using pictures of the home, you need to make sure you either own the copyright or you need to get permission from the person that owns the copyright.

Who owns my website?

Question: Another builder has copied my website, do I have the legal right to make him take it down?

Answer: If there is another website that has copied your website including your website’s content, there is legal action you can take.  Generally, the first step is to issue a “cease-and-desist” letter.  A “cease-and-desist” letter is generally used to demand that someone stop infringing on your intellectual property.  After that, legal action is also a possibility.

Proving a violation of copyright or trademark law is not necessarily easy for technical reasons.  First, you want to make sure you actually own your website.  If you hired a vendor to create your website, then it is likely that you do not own it.   This is a common mistake that businesses make when creating a website.  The company hires a third party to create the site, and the third party retains ownership of it.  NOTE: IF YOU HIRE SOMEONE TO CREATE YOUR WEBSITE, MAKE SURE THEY ASSIGN THE COPYRIGHT TO YOU.

Second, you want to compare the websites to see how egregious the copying is, and whether the material you think is distinctively yours is truly something you can claim as copyrighted.  Many websites, particularly those that use “WordPress” to create a site, have an almost identical look because the websites are from standard template.

If you confirm that you own the copyright for your site, and it is not a standard “WordPress” type site, then the next step would be sending a cease-and-desist letter.

I just want to build a house, but I don't know who owns my customer's plans.

Question:  Your customer has provided you design plans for the home he wants to build, and you wanted to know whether you should receive confirmation from the architect relating to your use of those plans. 

Answer: Currently, the WBA contracts generally include a provision wherein the homeowner agrees to indemnify you if the homeowner uses plans that violate another person’s copyright.  In such case, if it turns out that the plans violate someone else’s copyright, you could still be sued.  The homeowner would have to reimburse you for any damages you incur including your legal costs and attorneys’ fees.  If the homeowner does not have the monies to reimburse you, then you would still owe any damages that were imposed against you, and you would still be responsible for your legal costs and attorneys’ fees.

Thus, it is much better to have the architect confirm in writing that the Owner is authorized to have you use the plans for building, and to have you make changes to the plan.  We would suggest the following language in the form of an email or some other written document from the architect stating:

“Dear [NAME OF ARCHITECT]: Please confirm that [NAME OF CUSTOMER] has the right to use the plans, drawings and design, which includes the right to allow their builder to modify the plans drawings and design for the construction of their house.  The [name of architect] does not claim any rights in the plans, drawings and design as to the construction of the [NAME OF CUSTOMER’S] house.”

My competitor is not #1!

Question: Can a builder advertise itself as a #1 builder in the area if there is no proof or evidence to support that claim? 

Answer: Wisconsin law forbids statements that are “untrue, deceptive, or misleading” to induce the public to enter into the purchase of real estate, merchandise, services, etc.  Wis. Stat. sec. 100.18.  This law applies to homebuilders.  Such a claim for deceptive advertisement would be made by either the Department of Agriculture Trade and Consumer Protection (DATCP) or by a consumer.

The issue is when is a statement such as “we are number 1” or “we are the best” becomes untrue, deceptive or misleading.  Wisconsin Statutes section 100.18 does not necessarily prohibit “puffery.”  Puffery, according to Black’s Law Dictionary, is “an expression of opinion by a seller not made as a representation of fact.”  Puffery usually concerns opinions rather than facts such as “we offer outstanding products at low prices.”  Generally, puffery is not a violation of the law.  Whether or not the statement “we are number 1” is deceptive advertising or puffery depends on the specific facts.  If a member’s advertising is indeed a concern, anyone can file a complaint with DATCP at its website.

Whose apartment is it?

Question: Can you set a limit on the number of people that a tenant has living in the apartment you rent?

Answer: There are two potential federal claims that may result from occupancy limits on an apartment/duplex.  First, there is a possible violation of the restrictions of advertising.  Under the law, advertisements may not state an explicit preference, limitation or discrimination based on familial status.  Advertisements may not contain limitations on the number or ages of children. Any advertisement that says you limit the number of people that can live in the apartment may violate this provision.  We strongly encourage that you do not include such limitations in your advertisements.

Second, a person cannot refuse to rent to someone based on family status.  There is often an issue of whether a landlord can limit the number of occupants per room.  A landlord may limit the number of occupants based on the size, but there is no rule that fits all cases. 

For example, for a large one-bedroom apartment where two adults will share the bedroom with an infant, a landlord probably cannot limit the number of occupants to two per bedroom.  However, for the same large bedroom apartment, a landlord may be able to prevent three grown adults from sharing the one bedroom.

In other words, anytime you desire to limit the number of people that live in your rental unit, you should seek guidance from the applicant municipality as to what it allows and then make sure that the limit does not violate the HUD requirements.


Better safe than sorry - workers' compensation insurance

Question:  My insurance carrier demands that my subcontractors carry worker compensation insurance, even if the subcontractor is an independent contractor or sole proprietor because Wisconsin Law requires it.  Is this correct?

Answer:  This is not legally correct, but it is correct as a practical matter.  As a legal, technical matter, an independent contractor/sole proprietor that has no employees does not have to carry workers’ compensation insurance. Any independent contractor that has employees must have workers’ compensation. As a practical matter (and your insurance agent’s point), it is not that simple of an issue.  The general contractor is required to have worker’s compensation insurance for all employees that work on the site.  The presumption is that anyone that works on the site is an employee of the general contractor.  If a subcontractor can meet the 9 item test, then the subcontractor and its employees will be considered an independent contractor and will not be considered employees of the general contractor for purposes of workers’ compensation. 

There are a large number of subcontractors that believe that they are “independent contractors”; however, for purposes of worker’s compensation, they cannot meet the 9 item test, and would be considered employees of the General Contractor.  The nine-item test is as follows.

1.   Maintain a separate business.
2.  Obtain a Federal Employer Identification number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on the work or service in the previous year. (A social security number cannot be substituted for a FEIN and does not meet the legal burden of s. 102.07(8) of the Act.)
3.  Operate under specific contracts.
4.  Be responsible for operating expenses under the contracts.
5.  Be responsible for satisfactory performance of the work under the contracts.
6.  Be paid per contract, per job, by commission or by competitive bid.
7.  Be subject to profit or loss in performing the work under the contracts.
8.  Have recurring business liabilities and obligations.
9.  Be in a position to succeed or fail depending on business expenses and income.

However, if an employee of a subcontractor is injured and it is determined that the subcontractor cannot meet the 9 item test, then that injured worker will be considered an employee of the general contractor for purposes of workers’ compensation. It does not matter whether the subcontractor represented to the general contractor that he met the requirements of being an independent contractor.  The onus is on the general contractor to either: 

1.  Include all workers at the site under the general contractor’s workers’ compensation policy,
2.  Insure that the subcontractor has a workers’ compensation policy that covers the subcontractor’s employees, or
3.  Confirm that the subcontractor meets the definition of an independent contractor. 

A good faith mistake or even outright fraud by the subcontractor will not excuse the general contractor from liability. The best practice for general contractors to avoid potential liability is to require that their subcontractors carry workers’ compensation and that each subcontractor provide a certificate of insurance establishing that they have workers’ compensation insurance. 

This is the reason that many insurance companies require that their insured general contractors require all subcontractors to carry workers’ compensation insurance even if it is not legally required in all cases.  Insurance carriers require it because the insurance companies know it is common that the general contractor will be responsible for any subcontractor that is not insured.

As a legal matter, most subcontractors without a workers’ compensation policy will not meet the independent contractor test.  More importantly, as a practical matter, if a worker is injured on the general contractor’s work site and the subcontractor does not have a worker compensation policy, the injured worker will file a claim against the general contractor’s policy and the state will hold the general contractor responsible. 

In other words, when a “sole proprietor” or “independent contractor” without coverage falls off the roof and is unable to work for a year, the “sole proprietor” or “independent contractor” will make a claim against the general contractor’s workers’ compensation policy, and the state will find a way to hold the general contractor liable. 

Why is my insurance premium so high?

Question: How do insurance companies determine premiums for general liability policies, and what strategies exist for addressing the computation of premiums during a Premium Audit. Specifically, what is the definition of "subcontractor costs" to determine a premium basis, and whether the subcontractor's costs for materials would be included?

Answer: As to the specific question, most insurance carriers include the costs of materials in the total subcontractor costs when determining the insured's premium basis.  The actual basis for determining the premium will be included in its rules and rates.  The problem is that most insurance carriers do not tell you how they determine the total subcontractor costs until you get to the audit.

To assist your understanding of your insurance premium, we are providing you this general explanation of how premiums are determined for Commercial General Liability (CGL) policies.

Deposit (or Advanced) Premiums versus Earned Premiums

Many businesses misunderstand how most CGL insurance policies determine their premiums.  First, there is the deposit premium.  The deposit premium is the deposit required by the insurer under your CGL policy.  When you purchase a GCL policy, you pay the deposit premium subject to a year-end audit.  The "deposit premium" you pay is only an estimate of your actual premium.  The insurance carrier gets information from you relating to its different premium categories (your total payroll, subcontractor sales, etc.).  It uses those numbers to estimate your Premium Basis in each category.  It then uses your estimated Premium Basis for 2018 to determine your Deposit Premium.  The Deposit Premium is what you pay in advance of your coverage.

The "Earned Premium" is the portion of the insurance premium that applies to the expired portion of the policy.  For example, if your coverage started on January 1, 2018, and is up for renewal on January 1, 2019, the earned premium as of today would be the portion of the premium that covers the policy from January 1, 2018 through today (approximately 45% of the premium is earned as of May 13, 2018).  The earned premium is the actual premium for the insurance coverage you are purchasing from the carrier, and will not be known until after the coverage period ends.

At the end of the coverage period, the insurance carrier will conduct a Premium Audit to determine the amount of the Earned Premium for the coverage period.  If the Earned Premium determined by the audit is greater than the Deposit Premium, then you will have to pay the difference.  If the Earned Premium is less than the Deposit Premiums, then you will receive the difference.

Determining Premiums

To simplify, CGL premiums for general contractors are usually based on a formula that takes into account the general contractor's total payroll and the total cost of sub-contracted work.  A rate is generally applied to the per $1,000 (i) of payroll for the owners, (ii) of payroll of other employees of the GC, (iii) of the total costs of uninsured subcontractor work, and (iv) total costs of insured subcontractor work.  Please note that each carrier may do this differently.  Other factors may also be used such as land acreage.  A homebuilder that develops land may be subject to additional charges based on acreage of vacant land or subdivided land for development.  Each insurance carrier uses a different formula, but most are based on the above factors in some manner.

As you would expect, an insurance carrier will increase the basis used to determine your premiums for uninsured subcontractors than it will for insured subcontractors.

IMPORTANT POINT #1 -  The rates used to determine premiums are generally set forth in your Commercial General Classification Schedule Declaration. For example, it may say:

Premium Basis: $1,036,200 - Total Subcontractor Sales --- Per 1,000 Rate: .588 = Deposit Premium $609. 

A similar line item would exist for each Premium Basis (employee payroll, total subcontractor costs, etc.).  This document should be included with your policy documents.  However, it generally does not include how the carrier determines your premium basis.  For example, this document will not tell you whether subcontractor materials are included in total subcontractor costs.  Whether or not the subcontractor's materials are included in the premium basis will directly impact your rate.  Thus, you have to ask for the insurance carrier's rules and rates to find how it determines each premium basis.

IMPORTANT POINT #2 - When your insurance agent obtains an insurance quote for you, the agent is either using your historical information or estimates to determine a Deposit Premium amount.  If the information given to the insurance carrier is not correct or varies from the actual numbers you expect for a coverage the year, the audit will catch it and the Earned Premium than the Deposit Premium.

It is very important to understand the rules and rates used by your insurance carrier to determine your premium prior to purchasing the coverage.  In other words, you need to know what information was used by the insurance carrier to determine your deposit premium to insure that the information is consistent with what you expect for the upcoming year.  For example, if the Deposit Premium was determined based on information that your estimated payroll is $100,000; however, you know your actual payroll for the year will be $250,000, then you should expect or know that at the end of the year the Premium Audit will catch that difference and you will owe additional amounts at the end of the year.  A consumer needs to be on guard against insurance agents that submit low ball estimates to the carrier to obtain a very favorable quote to get the business knowing that the difference will be caught during the Premium Audit.

IMPORTANT POINT #3 -  Related to Important Point 1, you must know at the time you purchase the coverage how each premium basis will be determined and what records and documents you will need regarding payroll, subcontractors, etc. to make sure you are treated correctly at the time of the Premium Audit.  Once you know what records and documents you will need at the time of the audit, you can maintain and obtain those records and documents through the period of coverage.

Tips for analyzing your GCL policy before purchase and working through the audit:

1.  Find out from the carrier how it determines its Premium Basis for each category.  For example, are materials included in Subcontractor Costs?
2.  Make sure your employees are not misclassified.  Different employees may have different rates for determining premiums.
3.  Make sure you know how subcontracted work is classified.  For example, are there different rates for insured and uninsured subcontractors.  Generally, the carrier will add the subcontractor's payroll to the general contractor's payroll to determine premium basis if you do not have certificates of insurance.  You can argue that you should not be charged at all for insured subcontractors for which you have obtained a certificate of insurance.
4.  Make sure you know what documentation you will need to give the insurance carrier.  For example, if you need to have certificates of insurance from your subcontractors, make sure you know exactly how your carrier wants them completed to make sure they are classified as insured subcontractors.
5.  You can negotiate everything with an insurance carrier.  You can negotiate the terms of the audit and whether there even is an audit (if you are big enough).  At the time of audit, you can negotiate during the audit under the threat of moving your business.  However, the best time to negotiate is before you purchase the coverage.

This information is of a general nature, and we do not represent you in this matter and are not providing legal advice as to your specific factual issue.


It's not my fault it snowed - when can my employee collect unemployment insurance?

Question: Is an employee that missed work due to weather eligible for unemployment insurance benefits?

Answer: The issue is whether the employee was called on by his or her employer to report for work that was "actually available" within a given week, and, if so, whether the employee was unable to perform or unavailable for some or all of the work, within the meaning of section 108.04(1)(a) of the Wisconsin Statutes.  The critical inquiry is whether work with the employer was "actually available" to the employee.  As a general rule, work is not available when the employer is unable to provide conditions in which an employee can work with reasonable comfort.  The courts and the Labor and Industry Review Commission have traditionally found that work outdoors in extremely cold weather is not "actually available."  For instance, the Commission determined in one case that temperatures and wind chill factors of zero degrees and below were considered so severe as to place an unreasonable risk of injury or illness upon employees working outside on rooftops, and thus prevented the work assignments from being made available to the employees.

If an employer closes the business because of weather conditions, then work was not "actually" available and the employee may be eligible for unemployment insurance benefits.  If the employer was open for work, but the employee refused to work because of weather conditions, then there is a factual issue as to whether the employer was able to offer work in conditions that are reasonably safe and/or comfortable.

Wait, as an owner, can I collect unemployment? 

Question: Can a shareholder of a corporation or a member of a limited liability company claim unemployment insurance benefits as an employee of the corporation or limited liability company if there is a lack of work?  In other words, can a corporation's owner lay himself off and collect unemployment when there is not enough work?

Answer: In some circumstances, a shareholder or a member of a limited liability company is considered an "employee" for purposes of determining unemployment benefit eligibility.  "Employment" includes an individual's service for an employer organized as a corporation or a limited liability company in which the individual is a principal officer and has a direct or indirect ownership interest except if the employer has no annual payroll for the calendar year preceding an election or has an annual payroll of less than the amount specified under the statute establishing separate solvency contribution rates, and the employer files a notice of election to exclude the service of all of its principal officers who have a direct or indirect substantial ownership interest in the corporation or limited liability company.  See Wis. Stat. s. 108.025.

Practically speaking:

1.  Corporations.  As a general matter, if you are a shareholder in a corporation that has elected to be taxed under either Subchapter C (a C-Corp) or Subchapter S (an S-Corp) of the United States Internal Revenue Code, and you have not filed notice with the Wisconsin Department of Workforce Development electing to exclude the service of the officers and shareholders, then the officers and shareholders that provide employment services for the corporation may be eligible for unemployment insurance benefits.  This assumes that the formalities of an employer-employee relationship are maintained between a corporation and its shareholder or officer/employee (for example, the shareholder is paid a salary from which income taxes are withheld and UI tax was paid).

2.  Limited Liability Company.  Generally, a limited liability company with multiple members will be treated as a partnership and a single member limited liability company will be treated as a sole proprietorship.  See Wis. Stat. s. 108.068(1).  Pursuant to statute, a person that operates a business as a sole proprietorship and persons that operate a business as partnerships are not employees of the businesses for purposes of determining unemployment benefit, and cannot receive unemployment insurance benefits.  See Wis. Stat. s. 108.02(d) & (dm).  However, a limited liability company that has elected to be treated as a corporation for federal tax purposes shall be treated as a corporation under the Unemployment Insurance Statute.  See Wis. Stat. s. 108.068(2).  In other words, if your company is a limited liability company, but has elected to be taxed as an S-Corp., then you as a member/employee may be eligible for unemployment insurance benefits in the same manner as a shareholder or officer/employee of a corporation. 

There are two other points that a shareholder, officer or member/employee should be aware of regarding such benefits.  A shareholder, officer or member/employee that is eligible for benefits is generally limited to 10 times the weekly benefit rate, which is less than the general benefits employees would be entitled to under the law.  See Wis. Stat. s. 108.04(1)(g).  Also, if a corporation ceases to do business, the shareholder, officer or member/employee may not be eligible for benefits because he or she may have voluntarily terminated his or her employment (i.e., if you close your business, you essentially voluntarily quit working).

You can obtain more information from the Wisconsin Department of Workforce Development or by calling (800) 822-5246.


Who doesn't have lien rights?

Question: Can contractors and material suppliers hired by your subcontractors (often called “downstream suppliers”) have lien rights even if you do not know whether they were hired by your subcontractor?

Answer: Yes, your downstream suppliers do have lien rights.  There is no “tier” limit for lien rights.  If the second tier supplier (or third or fourth, etc.) is providing materials for a project that is wholly residential and is four units or less, then a downstream supplier must follow the usual steps: (1) serve on the owner of the property an identification notice within sixty days of the last day it furnished materials, (2) serve a notice of intention to file a lien claim on the owner at least 30 days before filing the lien claim, and (3) file with the circuit court in the county where the property is located a claim for lien within six months from the last date that the materials were furnished and serve the claim for lien on the owner within thirty days.

If the property is commercial or more than four units, the downstream supplier only needs to complete steps two and three.

How do I protect myself from my subcontractor's subcontractor's liens?

Question: How does a general contractor or owner protect the property from a lien being placed against it by a subcontractor or material suppliers?

Answer: For purposes of this question, the following answer is the same for homeowners and general contractors; however, we will assume that this question comes from a home builder that is acting as a prime contractor and is hiring a subcontractor to do a large portion of the work like framing or roofing.

First, do not pay any amounts to any prime contractor (if you are the owner) or the subcontractor (if you are the prime contractor) until all lien waivers are obtained from the contractor and downstream subcontractors and material suppliers.

Second, and the more difficult part, the owner and prime contractor need to document all subcontractors and material suppliers.  This can be difficult to do.  The owner and prime contractor should demand a list of subcontractors and material suppliers from each contractor hired.  Moreover, the owner and prime contractor need to monitor the site.

Large projects provide a good example of how to protect yourself against liens.  On large projects, the prime contractor will set up a fence perimeter around the project allowing only one entrance.  Each contractor or material supplier that enters is forced to sign in, and name who he or she is visiting at the site.  For example, if a material supplier is showing up for delivery, then it is required to state which subcontractor ordered the materials.  When the subcontractor submits a demand for payment, the general contractor requires that it provide a lien waiver for subcontractor and the material supplier that delivered materials on the specific date.

If this is a small project (for example, a homeowner hiring a roofing contractor), then the homeowner should require a list of the subcontractors that will be working on the home and the name of the material suppliers that will be working at the site.  The homeowner should try to be there when the material supplier drops off the shingles to see who it is and should ask the person dropping them off for a business card showing who they work for.  The homeowner should also document each subcontractor working at the site. 

For example, if the roofing contractor generally shows up with trucks that have the roofing contractor’s name on it, and then either (i) another contractor shows up with a different name to do the work; or (ii) a number of workers show up in their own vehicles and do not appear to be employees of the roofing contractor, then the owner would need to ask who those workers what entity they are working for.

When the roofing contractor asks for payment, then the owner should demand lien waivers from every subcontractor or material supplier he documented at the project site.


Why does every owner have a brother-in-law in the trades?

Question: My customer wants his brother-in-law to install the kitchen cabinets as part of the remodel project.  How do I protect myself from any defects and issues caused by his work?

Answer:  As you suspect, it is essential that you include specific language in your contract with your customer to protect you from any problems, defects or other issues that result from work being performed by another contractor hired by the owner – especially if the other contractor is the owner’s brother-in-law!

Below is Section 9.B of the WBA standard Home Remodeling Contract (Lump Sum), which is the language you need if the Owner is going to self-perform any work. The language may be modified to also address work performed by other contractors directly hired by the Owner.

“Owner’s Work and Materials / Credits. In the event that Owner will provide labor and materials for the completion of the owner’s work set forth on Attachment 4 (the “Owner’s Works”), Owner agrees to perform Owner’s Work within a reasonable time after notice from the Remodeler that such work must be performed to allow Remodeler to complete Remodeler’s Work. Owner shall complete Owner’s Work subject to appropriate inspection by the proper governmental authority. Owner is responsible for ensuring that any party other than Remodeler who performs work and/or supplies material at the Project Site carries the necessary worker compensation insurance to the extent required by law and general liability insurance to cover all operations at the Project Site in the same amount Remodeler is required to carry under Section 17. Owner agrees to defend, indemnify and hold Remodeler harmless from any and all claims, demands, actions, liabilities, losses, and damages including, without limitation, actual, reasonable attorneys’ fees and costs incurred, to persons or property arising out of or related to any act or omission of Owner or any agent, contractor, or subcontractor of Owner in, on, or about the Project Site, in connection with the performance of Owner’s Work or the furnishing of materials for Owner’s Work. Owner’s Work is excluded from the Warranty provided under this Contract. Any damage to the Work caused by Owner, Owner’s agents, Owner’s contractors and subcontractors or caused by Owner’s Work is excluded from the Warranty. Such damages shall be the sole responsibility of Owner.”

I don't even know that guy, why is he suing me?

Question: Is a general contractor that contracts with a developer to construct a residential dwelling (whether a condominium building or a single family residential house) liable to a third party that purchases the residential dwelling from the developer?

Answer: There are a number of assumptions that we will make to answer this question.  First, we will assume that the general contractor is not also the developer.  Second, we will assume that the general contractor did not provide a warranty to the third party that purchased the unit from the developer.  Third, we will assume that the developer did not have the right and did not assign any warranty that the builder gave to the developer to the homeowner.

We will use the following fact pattern to generalize our answer.  Assume that a developer hires a builder to build a ten-unit condominium building.  The developer is a limited liability company that accepts the completed building from the builder with a one-year standard warranty.  The developer then sells the completed condominium units to individual buyers using a standard form offer to purchase.  There is no contract between the builder and the condominium unit buyers.  After the developer finishes selling the units, the developer dissolves his or her limited liability company.  A number of years pass, and there is an alleged construction defect.  The developer is no longer a viable entity, and the condominium unit owners cannot look to the developer to mitigate the alleged defect.  However, the builder is still a viable entity so the unit owners (or the association) pursues a claim against the builder.

There are significant obstacles to the condominium unit owner (or the association) making such a claim against the builder.  First, there is not a contract between the builder and the individual unit owner so the unit owner cannot claim that the builder breached the terms of the contract or the terms of the warranty.  Second, without a valid contract claim, the unit owner would need to make either a negligence or strict liability claim against the builder; however, the Economic Loss Doctrine precludes a purchaser of a condominium unit from employing negligence or strict liability theories to recover from the builder loss which is solely economic (i.e., money damages).  The reason for the Economic Loss Doctrine is that the purchaser has the power to allocate the risk of economic loss are part of his or her contract.  In other words, the courts have said that if you enter into a contract to purchase a product such as a house, then you need to look to the contract itself when alleging a claim for damages.  In this case, the unit owner (or the association's) valid claim is against the developer.

This is not to say that some creative claims could not be made against a builder based on the specific facts of a situation; however, there would be significant hurdles as stated above to making such claims.

How long do I have to worry about his difficult owner?

Question: Which statute of limitation applies to a claim for defective work?

Answer: The statute of limitations varies by case.

First, there would be a six-year statute of limitation for breach of contract; however, there are different factual scenarios that could lengthen or shorten whether a claim can be made by the owner.  For example, the Wisconsin Builders Association’s form contract limits the remedy for any construction defect to the terms and conditions of the warranty, which means the time you would generally be responsible for an alleged defect would be for the length of the warranty you provide.  If you do not have such a provision in your contract, then the statute of limitations would be six years from the date of breach.

Second, if this is a remodel job and not new construction, the person may make a claim that the contractor violated the Home Improvement Practices Act (Wis. Adm. Code § ATCP 110), then the applicable statute of limitations is six years from the date of discovery of the violation.

Third, for any claim of a defect that is not otherwise governed by another statute of limitation, there is a ten-year statute of repose that will bar claims that arise out of improvements to real property after seven years from the date of completion.

Zoning & Other Regulations


Question: If a parcel of property is currently zoned Ag, but the comprehensive plan has it designated as future Residential, can the municipality deny an application to rezone the property to Residential? 

Answer: A municipality has a lot of discretion relating to rezoning petitions.  If the comprehensive plan does not show the area as residential, there is no doubt that the municipality would have the discretion to deny an application for rezoning.  However, if the comprehensive plan shows it as a future area of residential development, there are still other factors that could be the basis of a legal denial. 

The general standard for determining rezoning applications is whether the rezoning is consistent with long-range planning and based upon considerations which affect the whole community. The nature and character of the parcel, the use of the surrounding land and the overall scheme or zoning plan are also relevant. Finally, the interests of public health, morals and safety must also be considered, as well as the promotion of public welfare, convenience and general prosperity. State ex rel. Am. Oil Co. v. Bessent, 27 Wis.2d 537, 544, 135 N.W.2d 317 (1965); see also Ballenger, 131 Wis.2d at 427, 388 N.W.2d 624.

As you can read for yourself, the long-range plan is only one factor.  A municipality could still deny the application on other grounds.  A municipality’s decision will be granted deference; however, it must be based on acceptable factors.

Bathroom humor

Question: Is a general contractor is required by law to provide an onsite bathroom for its workers?

Answer: Yes, OSHA regulations require adequate onsite bathrooms. For less than 20 employees there must be at least one usable toilet on site.  If it is new construction without an available toilet for the workers to use, then there needs to be a portable toilet at the site or access to a toilet within ten minutes. 

Why did the stormwater cross the road?

Question: Can a homeowner change the grade of her lot so that it increases the amount of water or the velocity of water that runs onto neighboring lots?

Answer: First, you will need to see if there are recorded Conditions, Covenants and Restrictions or governmental stormwater plans that apply to the lot. Any such restrictions will govern the owner’s changes to the grading of the lot.

Second, if there are not such restrictions that prohibit changes to the grade, then any such changes are subject to the reasonable use rule.  The reasonable use rule means that persons can drain or direct diffused surface water on to another person's land unless such drainage is unreasonable.  A discharge is unreasonable if there is an intentional invasion of another's land and either the gravity of the harm caused by the discharge outweighs the utility of the conduct causing the discharge, or the harm caused by the discharge is substantial and the financial burden of compensating for the harm does not render the conduct causing the discharge to become infeasible.

Generally speaking, when a landowner develops a lot, the impervious services are increased and the grading is changed; however, the landowner should be taking actions that minimize the change in the amount and the velocity that the stormwater flows off of her property.  Often this is accomplished by using stormwater ponds that hold the water and release it at the rate that existed before development. However, if the landowner changes the grading and surfaces so that the amount and velocity of the water discharged onto the neighboring lots causes damages to those lots, the landowner may be in violation of the reasonable use doctrine.

Really, who reads all those loan documents?

Question:  What is the purpose of a Spousal Consent Form that states the spouse acknowledges his or her spouse’s personal guarantee, but that the spouse is not becoming a personal guarantor?

Answer: There are different types of Spousal Consent Forms, and you should review the exact language before signing it.  As a general matter, a bank will review the credit of the applicant when deciding whether to loan money to the applicant.  If the applicant is a limited liability company or corporation, it may require the member(s), officer(s) or shareholder(s) to personally guarantee the loan. 

If the guarantor of the loan is married, his or her assets in Wisconsin are considered marital property, which means that the guarantor and his or her spouse own their marital property jointly.  At the very least, the Spousal Consent Form is an acknowledgment by the guarantor’s spouse that the bank has a lien against the guarantor’s interest in the jointly owned property.  Since the guarantor’s and spouse’s ownership is generally not divisible (i.e., the ownership of the lake house, of the condominium in Florida, etc.), the Spousal Consent Form will prevent the spouse from objecting to the lien against the property.

Under Wisconsin law (Wis. Stat. s. 766.55), an obligation incurred by a spouse during marriage is presumed to be incurred in the interest of the marriage or the family.  In many circumstances, this means that the Spousal Consent, which will often say that the debt is incurred in the interest of the marriage or family, will allow the bank to satisfy the guarantor’s debt by attaching it to all the martial property including the guarantor’s spouse’s interest in the martial property (i.e., the lake house or condominium in Florida will be sold to satisfy the guarantor’s debt); however, the bank will not be able to go after the guarantor’s spouse beyond his or her interest in the martial property.

Finally, under Regulation B (12 CFR part 202) of the Equal Credit Opportunity Act, the FDIC prohibits banks in specific circumstances from asking for personal guarantees from the spouse of a guarantor, but do allow the consent of the spouse.  This is often the reason you see the consent of spouse form specifically say the spouse is not personally guaranteeing the loan.

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