SB439: Bill Text

Analysis by the Legislative Reference Bureau

This bill provides that a restriction, covenant, or condition that prohibits or restricts the ownership, transfer, encumbrance, rental, occupancy, or use of real property on the basis of being a member of a protected class, as defined in the open housing law, (discriminatory restriction) and that is contained in a deed or other instrument affecting real property is void and unenforceable. Under current law, it is a violation of the open housing law to discriminate in housing, with limited exceptions, on the basis of sex; race; color; sexual orientation; disability; religion; national origin; marital status; family status; status as a victim of domestic abuse, sexual assault, or stalking; lawful source of income; age; or ancestry.

The bill also provides that no person may file or record a deed or other instrument that contains a discriminatory restriction with a register of deeds. If a person presents a deed or other instrument that contains a discriminatory restriction to a register of deeds for filing or recording, the register of deeds may reject the deed or instrument, or, if the register of deeds chooses to file or record the deed or instrument, the register of deeds may obscure the discriminatory restriction before filing or recording the deed or instrument.

The bill provides that a person that drafts a deed or other instrument affecting real property may not include a discriminatory restriction in the deed or instrument. Under the bill, if a person violates that prohibition, a grantee or other beneficiary of the deed or instrument may bring a civil action for injunctive relief against the person, and, if the grantee or beneficiary prevails, the grantee or beneficiary is entitled to collect the costs of the action, including reasonable attorney fees.

Under the bill, an owner of real property that is affected by a deed or other instrument that contains a discriminatory restriction may record with the register of deeds a certification to discharge and release the discriminatory restriction from the owner's real property. The bill creates a statutory certification form an owner may use for that purpose and requires the Department of Administration to provide copies of the form to the public by posting the form on DOA's website.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB439,1 Section 1. 59.43 (1c) (intro.) of the statutes is amended to read:

SB439,2,3 59.43 (1c) Register of deeds; duties. (intro.) Subject to sub. subs. (1g) to (1m), the register of deeds shall:

SB439,2 Section 2. 59.43 (1k) of the statutes is created to read:

SB439,2,10 59.43 (1k) Authority to reject instruments with discriminatory restrictions. If a register of deeds is presented with an instrument for recording or filing that contains a discriminatory restriction, as defined in s. 710.25 (1), the register of deeds may return the instrument unrecorded or unfiled or may, prior to recording or filing the instrument, obscure the discriminatory restriction such that the discriminatory restriction is not discernible on the instrument.

SB439,3 Section 3. 59.43 (9) (d) of the statutes is created to read:

SB439,3,4 59.43 (9) (d) With regard to certifications to discharge and release discriminatory restrictions under s. 710.25 (5) (a) related to previously filed or recorded documents, the register of deeds shall, if possible, include on the previously filed or recorded documents a notation of the document number of the certification, the date when the certification is filed or recorded, and, if the certification is assigned a volume and page number, the volume and page where the certification is filed or recorded.

SB439,4 Section 4 . 706.05 (1) of the statutes is amended to read:

SB439,3,9 706.05 (1) Subject to s. 59.43 (1g) to (1m) and (2m), every conveyance, and every other instrument which that affects title to land in this state, shall be entitled to record in the office of the register of deeds of each county in which land affected thereby may lie.

SB439,5 Section 5 . 710.25 of the statutes is created to read:

SB439,3,18 710.25 Discriminatory restrictions prohibited. (1) In this section, “discriminatory restriction” means a restriction, covenant, or condition that prohibits or restricts the ownership, transfer, encumbrance, rental, occupancy, or use of real property on the basis of being a member of a protected class, as defined in s. 106.50 (1m) (nm). “Discriminatory restriction” does not include a restriction, covenant, or condition that prohibits or restricts the ownership, transfer, encumbrance, rental, occupancy, or use of real property on a basis that is allowed under s. 106.50 (5m) (a) to (f) or 42 USC 3607.

SB439,3,20 (2) A discriminatory restriction contained in a deed or other instrument affecting real property is void and unenforceable.

SB439,3,23 (3) No person may file or record with, or present for filing or recording to, a register of deeds a deed or other instrument affecting real property that contains a discriminatory restriction.

SB439,3,25 (4) A person that drafts a deed or other instrument affecting real property may not include a discriminatory restriction in the deed or instrument.

SB439,4,7 (5) (a) If real property is affected by a deed or other instrument that contains a discriminatory restriction, an owner of the real property may discharge and release the discriminatory restriction from the owner's real property by recording a certification to discharge and release the discriminatory restriction. Subject to s. 59.43 (2m), the certification is entitled to record in the office of the register of deeds in the county in which the owner's real property is located if the certification includes all of the following:

SB439,4,8 1. The signature of the owner.

SB439,4,10 2. An acknowledgement or authentication in accordance with s. 706.06 or ch. 140.

SB439,4,12 3. The full legal description, as defined in s. 706.01 (7r), of the real property to which the certification relates.

SB439,4,16 4. The title of the deed or instrument that contains the discriminatory restriction, the document number of the deed or instrument, and, if given on the deed or instrument, the volume and page where the deed or instrument is filed or recorded.

SB439,4,21 (b) An owner of real property may record a single certification under par. (a) to discharge and release discriminatory restrictions from multiple deeds and instruments that affect the real property. The certification shall include the information specified under par. (a) 4. for every deed or instrument to which the certification applies.

SB439,4,23 (c) An owner of real property may make the certification under par. (a) in substantially the following form:

SB439,5,3 DISCHARGE AND RELEASE OF DISCRIMINATORY RESTRICTION AFFECTING REAL PROPERTY

SB439,5,11 Pursuant to section 710.25 of the Wisconsin statutes, a restriction, covenant, or condition that prohibits or restricts the ownership, transfer, encumbrance, rental, occupancy, or use of real property in this state on the basis of membership in a protected class, as defined in the Wisconsin statutes, contained in a deed or other instrument affecting real property is void and unenforceable. Pursuant to section 710.25 of the Wisconsin statutes, any owner of real property may record this form to discharge and release such a discriminatory restriction from the owner's real property.

SB439,5,12 DISCHARGE AND RELEASE BY OWNER

SB439,5,13 I, .... (name of owner), certify all of the following:

SB439,5,15 That I own the following described real property located in .... County, Wisconsin:

SB439,5,16 .... (property description)

SB439,5,19 That the real property is affected by an instrument titled .... and recorded on .... (date), in the Office of the Register of Deeds for .... County, Wisconsin, in volume ...., at page ...., as document number ....

SB439,5,20 [Repeat for each instrument to which the form applies.]

SB439,5,23 That the instrument(s) (contains) (contain) one or more discriminatory restrictions that are void and unenforceable under section 710.25 of the Wisconsin statutes and the Wisconsin and U.S. Constitutions.

SB439,6,3 That, pursuant to section 710.25 of the Wisconsin statutes, the discriminatory restrictions are hereby discharged and released from the real property, and the remainder of the instrument(s) (continues) (continue) in full force and effect with respect to the real property and shall be construed as if the discriminatory restrictions are not contained therein.

SB439,6,4 OWNER'S CERTIFICATION

SB439,6,9 The undersigned certifies that the information stated in this instrument is true and correct to the best of my knowledge, information, and belief. The undersigned makes this instrument for the purpose of discharging and releasing one or more discriminatory restrictions affecting my real property that are void and unenforceable.

SB439,6,10 Signed ....

SB439,6,11 Dated ....

SB439,6,12 ACKNOWLEDGEMENT

SB439,6,13 State of ....

SB439,6,14 County of ....

SB439,6,15 Signed and affirmed before me on .... (date), by .... (name of owner).

SB439,6,16 Signature of notary ....

SB439,6,17 (Seal, if any, of notary)

SB439,6,18 Printed name ....

SB439,6,19 My commission expires: ....

SB439,6,20 This instrument was drafted by: ....

SB439,6,22 (d) The department of administration shall prepare and provide copies of the form under par. (c) to the public by posting the form on the department's website.

SB439,6 Section 6. 895.12 of the statutes is created to read:

SB439,7,3 895.12 Discriminatory restrictions in real property instruments; injunctive relief. (1) In this section, “discriminatory restriction” has the meaning given in s. 710.25 (1).

SB439,7,8 (2) If a person that drafts a deed or other instrument affecting real property includes a discriminatory restriction in the deed or instrument in violation of s. 710.25 (4), a grantee or other beneficiary of the deed or instrument may, in addition to any other remedies available under law, bring a civil action for injunctive relief against the person.

SB439,7,11 (3) If a plaintiff prevails in an action under sub. (2), the court shall award to the plaintiff the costs of the action, including, notwithstanding s. 814.04 (1), reasonable attorney fees incurred in connection with the action.

SB439,7 Section 7. Nonstatutory provisions.

SB439,7,19 (1) Legislative intent statement. Covenants in deeds and other instruments that are discriminatory based on race and other protected classes are unenforceable under the 1968 federal Fair Housing Act, 42 USC 3601 to 3631, and Wisconsin's open housing law, s. 106.50, and are against the governmental purpose of allowing an owner of real property to discharge and release a discriminatory restriction from real property that is affected by a deed or other instrument that contains a discriminatory restriction.

SB439,8 Section 8 . Initial applicability.

SB439,7,25 (1) Discriminatory restrictions void; retroactive application. The treatment of s. 710.25 (2) first applies retroactively to a deed or other instrument that contains a discriminatory restriction, as defined in s. 710.25 (1), and that is created before, and applies to a deed or other instrument that contains a discriminatory restriction and that is created on or after, the effective date of this subsection.

SB439,8,3 (2) Discriminatory restrictions in real property instruments; injunctive relief. The treatment of s. 895.12 first applies to a deed or other instrument that is drafted on the effective date of this subsection.

SB439,9 Section 9. Effective dates. This act takes effect on the day after publication, except as follows:

SB439,8,7 (1) The treatment of ss. 59.43 (9) (d) and 710.25 (5) takes effect on the first day of the 5th month beginning after publication.

SB439,8,8 (End)