History: 1991 a. 301
Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998
Creation of joint tenancy. 700.19(1)
The creation of a joint tenancy is determined by the intent expressed in the document of title, instrument of transfer or bill of sale. Any of the following constitute an expression of intent to create a joint tenancy: "as joint tenants", "as joint owners", "jointly", "or the survivor", "with right of survivorship" or any similar phrase except a phrase similar to "survivorship marital property".
(2) Husband and wife.
If persons named as owners in a document of title, transferees in an instrument of transfer or buyers in a bill of sale are described in the document, instrument or bill of sale as husband and wife, or are in fact husband and wife, they are joint tenants, unless the intent to create a tenancy in common is expressed in the document, instrument or bill of sale. This subsection applies to property acquired before January 1, 1986, and, if ch. 766
does not apply when the property is acquired, to property acquired on or after January 1, 1986.
If covendors owned realty as joint tenants and a purchase money mortgage names the covendors as mortgagees, the mortgagees are joint tenants, unless the purchase money mortgage expresses an intent that the mortgagees are tenants in common.
Notwithstanding s. 700.18
and subs. (1)
, co-personal representatives and cotrustees hold title to interests in property as joint tenants.
(5) Change in common law requirements.
The common law requirements of unity of title and time for creation of a joint tenancy are abolished.
Nature of cotenancies and their taxation—death and gift. Sheedy, Sullivan, 56 MLR 3.
Extent of undivided interests in tenancy in common.
The extent of the undivided interests of tenants in common for the duration of the tenancy is determined by the intent expressed in the document of title, instrument of transfer or bill of sale; if no intent is expressed in the document, instrument or bill of sale, tenants in common are presumed to own equal undivided interests for the duration of the tenancy.
History: 1971 c. 66
Covendors in contracts to transfer. 700.21(1)
If 2 or more persons are named as covendors in a contract to transfer an interest in property which they own as joint tenants, the purchase price is payable to them as joint tenants, unless the contract expresses a contrary intent. If 2 or more persons are named as covendors in a contract to transfer an interest in property which they own as tenants in common, the purchase price is payable to them according to their interests, unless the contract expresses a contrary intent.
If 2 or more persons are named as covendors in a contract to transfer an interest in property which is owned by less than all of the covendors, the purchase price is payable to the owner or owners of the interest in property to which the contract relates, unless the contract expresses an intent that the purchase price is payable to the covendors as joint tenants or as tenants in common.
History: 1971 c. 66
Exception for equitable rights of cotenants and third persons.
Nothing in ss. 700.17
prevents an equitable lien arising in favor of one cotenant against another tenant or tenants because of events occurring after the establishment of the cotenancy relationship nor prevents imposition of a constructive trust in favor of a 3rd person in an appropriate case.
History: 1971 c. 66
Exception for bank deposits, checks, government bonds and vehicles. 700.22(1)(a)(a)
In this subsection, "deposits" include checking accounts or instruments deposited into or drawn on checking accounts, savings accounts, certificates of deposit, investment shares or any other form of deposit.
Nothing in ss. 700.17
governs the determination of rights to deposits in banks, building and loan associations, savings banks, savings and loan associations, credit unions or other financial institutions.
Nothing in ss. 700.17
applies to United States obligations to the extent they are governed by law of the United States.
See ch. 705
for provisions applicable to multiple party accounts.
The rationale underlying the adoption of the contract theory as applied to joint savings accounts does not hold with respect to joint checking accounts, the very nature of which is such that it is utilized more as a shared wallet than as a shared investment, as is the case with a savings account; hence there is no sound reason for ascribing to the joint checking accounts the attributes of a common-law joint tenancy other than survivorship. No tracing of assets is permissible. Estates of Beisbier, 47 Wis. 2d 409
, 177 N.W.2d 919
Liability among cotenants for rents and profits. 700.23(1)(1)
The provisions of this section apply only in the absence of a valid agreement to the contrary between the cotenants. As used in this section, "proportionate share" means a share determined by the number of joint tenants, in the case of a joint tenancy, and the extent of a tenant in common's undivided interest, in the case of a tenancy in common.
If land belonging to 2 or more cotenants is rented to a 3rd person, any cotenant may recover that cotenant's proportionate share of the net rents collected by another cotenant after deduction of property taxes, maintenance costs and any other proper charges relating to the property.
If land belonging to such cotenants is occupied by one cotenant and not by another, any cotenant not occupying the premises may recover from the occupying cotenant:
A proportionate share of the reasonable rental value of the land accruing after written demand for rent if the occupying tenant manifests an intent to occupy the premises to the exclusion of the other cotenant or cotenants;
A proportionate share of the net profits if the occupying cotenant engages in mining, cutting of timber, removal of sand or gravel, or any similar operation resulting in diminution of the value of the premises. In such a case, the occupying cotenant must render an accounting to the other cotenant, showing all receipts and expenditures, and is entitled to deduct a reasonable amount for the value of services provided by the occupying cotenant; but any other cotenant may in the alternative elect to recover that cotenant's proportionate share of the amount which that cotenant can prove would have been received by licensing a 3rd party to carry on the same operation.
If one cotenant has leased the premises from another cotenant, upon expiration of the lease it is presumed that the cotenant who has leased the premises from the other cotenant continues to hold over as provided in s. 704.25
, unless that cotenant gives to the other cotenant prior to the expiration of the lease a written notice to the contrary, by one of the methods under s. 704.21
History: 1971 c. 66
; 1991 a. 316
Death of a joint tenant; effect of liens.
A real estate mortgage, a security interest under ch. 409
, or a lien under s. 72.86 (2)
, 1985 stats., or s. 71.91 (5) (b)
, ch. 49
or rules promulgated under s. 46.286 (7)
on or against the interest of a joint tenant does not defeat the right of survivorship in the event of the death of such joint tenant, but the surviving joint tenant or tenants take the interest such deceased joint tenant could have transferred prior to death subject to such mortgage, security interest or statutory lien.
Although the docketing of a judgment by a judgment creditor creates a lien upon the debtor's interest in joint tenancy property, it does not without levy and execution sever the joint tenancy, and if the debtor dies following docketing of the judgment, but prior to execution thereon the surviving joint tenant takes the entire interest in the property free of the judgment creditor's lien, because the debtor's interest in the property which was the subject of the lien has been extinguished. Northern State Bank v. Toal, 69 Wis. 2d 50
, 230 N.W.2d 153
A decedent's one-half interest in joint property which was subject to a federal tax lien against the decedent becomes encumbered with the tax lien when it passes to the survivor. U.S. v. Librizzi, 108 F.3d 136
Applicability of chapter.
This chapter applies to interests in property in existence on July 1, 1971, and to interests in property created after such date. If application of any provision of this chapter to an interest in property in existence on July 1, 1971, is unconstitutional, it shall not affect application of the provision to an interest in property created after July 1, 1971.
Applicability of general transfers at death provisions. Chapter 854
applies to a transfer at death under an instrument of transfer.
History: 1997 a. 188
Renewable energy resource easements.
In this section, "renewable energy resource easement" means an easement which limits the height or location, or both, of permissible development on the burdened land in terms of a structure or vegetation, or both, for the purpose of providing access for the benefited land to wind or sunlight passing over the burdened land. Every renewable energy resource easement shall be in writing and shall be subject to the same conveyancing and instrument recording requirements as other easements. Renewable energy resource easements shall run with the land benefited and burdened unless otherwise expressly stated therein.
History: 1981 c. 354
Uniform conservation easement act. 700.40(1)
In this section, unless the context otherwise requires:
"Conservation easement" means a holder's nonpossessory interest in real property imposing any limitation or affirmative obligation the purpose of which includes retaining or protecting natural, scenic or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use, protecting natural resources, maintaining or enhancing air or water quality, preserving a burial site, as defined in s. 157.70 (1) (b)
, or preserving the historical, architectural, archaeological or cultural aspects of real property.
Any governmental body empowered to hold an interest in real property under the laws of this state or the United States.
Any charitable corporation, charitable association or charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological or cultural aspects of real property.
"Third-party enforcement right" means a right provided in a conservation easement empowering a governmental body, charitable corporation, charitable association or charitable trust, which, although eligible to be a holder, is not a holder, to enforce any term of the easement.
(2) Creation, conveyance, acceptance and duration. 700.40(2)(a)(a)
Except as otherwise provided in this section, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as any other easement.
No right or duty in favor of or against a holder and no right in favor of a person having a 3rd-party enforcement right arises under a conservation easement prior to its acceptance by that holder and recordation of that acceptance.
Except as provided in sub. (3) (b)
, a conservation easement is unlimited in duration unless the conservation easement otherwise provides.
No conservation easement may impair an interest in real property existing at the time the conservation easement is created, unless the owner of that interest is a party to the conservation easement or consents to it.
An action affecting a conservation easement may be brought by any of the following:
An owner of an interest in the real property burdened by the conservation easement.
This section does not affect the power of a court to modify or terminate a conservation easement in accordance with any principle of law or equity.
(4) Validity of conservation easement.
A conservation easement is valid even though any of the following apply:
It is not appurtenant to an interest in real property.
It can be or is assigned to another holder.
It is not of a character recognized traditionally at common law.
It imposes affirmative obligations upon the owner of any interest in the burdened property or upon the holder.
The benefit does not touch or concern real property.
There is not privity of estate or of contract.
(5) Effect on enforceable interests.
Nothing in this section invalidates any interest, whether designated as a conservation easement, covenant, equitable servitude, restriction, easement or otherwise, which is otherwise enforceable under the laws of this state.
(6) Uniform application and construction.
This section shall be applied and construed so as to make uniform the laws relating to conservation easements among states enacting substantially identical laws.
History: 1981 c. 261
; 1985 a. 316
NOTE: Chapter 261, laws of 1981
, which created this section, states in section 3 that: The treatment of ss. 700.40 and 893.33 (6m) by this act applies to:
Effective date text
(1) Any interest created after April 27, 1982 which complies with s. 700.40, whether designated as a conservation easement, covenant, equitable servitude, restriction, easement or otherwise.
Effective date text
(2) Any interest created prior to April 27, 1982 which would have been enforceable if created after April 27, 1982, unless retroactive application contravenes the constitution or laws of this state or of the United States.
Solar and wind access. 700.41(1)
The purpose of this section is to promote the use of solar and wind energy by allowing an owner of an active or passive solar energy system or a wind energy system to receive compensation for an obstruction of solar energy by a structure outside a neighbor's building envelope as defined by zoning restrictions in effect at the time the solar collector or wind energy system was installed.
"Building envelope" means the 3-dimensional area on a lot on which building is permitted, as defined by the existing ground level and by any applicable height restriction, setback requirement, side yard requirement or rear yard requirement, notwithstanding any provisions for variances, special exceptions or special or conditional uses in effect in the city, town or village in which the lot is located.
"Collector surface" means any part of a solar collector that absorbs solar energy for use in the collector's energy transformation process. "Collector surface" does not include frames, supports and mounting hardware.
The portion of a building or other structure which blocks solar energy from a collector surface between the hours of 9 a.m. to 3 p.m. standard time if the portion of the building or structure is outside a building envelope in effect on the date of the installation of the solar collector.
The portion of a building or other structure which blocks wind from a wind energy system if the portion of the building or structure is outside a building envelope in effect on the date of the installation of the wind energy system.
"Obstruction" does not include blockage by a pole, wire, television antenna or radio antenna.
"Solar collector" means a device, structure or a part of a device or structure a primary purpose of which is to transform solar energy into thermal, mechanical, chemical or electrical energy.