Landmark Victory in the Wisconsin Supreme Court

Attorneys John P. Brady, Susan J. Marguet and Bryan W. Edgar won a landmark victory in the State’s highest court on March 24, 2010, on behalf of Weiss Berzowski Brady LLP client, Geneva National Trust. Geneva National is a 1,600-acre planned community consisting of golf courses, recreational clubs, open spaces, commercial units, roadways and utilities, and commercial, single- and multi-family residential units. The entire Geneva National community is subject to the terms of a restrictive covenant that gives the developer certain powers in order to facilitate the orderly development of the community. Several of the residential unit owners objected to the developer’s continuing powers, complaining that the developer’s powers were unreasonable and would lead to the overdevelopment of the Geneva National community. The Supreme Court ruled in favor of the developer and reasoned that communities such as Geneva National “are an entirely different type and level of development than condominiums” and, therefore, a developer must retain such powers so as to ensure the orderly development of the community. As part of its ruling, the Court also clarified nearly a century of prior restrictive covenant decisions and concluded that, if a restrictive covenant is not ambiguous, the Court may not enquire into whether the restrictive covenant is reasonable. Had the Supreme Court not so held, a developer could have lost its ability to complete and market the yet undeveloped portions of Geneva National, which would be financially disastrous to the developer. Absent such a ruling, planned communities such as Geneva National would cease to exist in the state of Wisconsin.