706.105 History
History: 1997 a. 188.
706.11
706.11
Priority of certain mortgages, trust funds. 706.11(1)(1) Except as provided in
sub. (4), when any of the following mortgages has been duly recorded, it shall have priority over all liens upon the mortgaged premises and the buildings and improvements thereon, except tax and special assessment liens filed after the recording of such mortgage and except liens under
ss. 292.31 (8) (i) and
292.81:
706.11(1)(a)
(a) Any mortgage executed to a federal savings and loan association or state or federal savings bank.
706.11(1)(b)
(b) Any mortgage executed to the department of veterans affairs under s.
45.352, 1971 stats.
706.11(1)(c)
(c) Any mortgage assigned to or executed to any of the following:
706.11(1)(c)1.
1. The United States, this state or a county, city, village or town in this state, or an agency, department or other formally constituted subunit of any of the foregoing.
706.11(1)(c)2.
2. The Wisconsin health and educational facilities authority created under
ch. 231, the Wisconsin housing and economic development authority created under
ch. 234 or any other authority created by state law.
706.11(1)(d)
(d) Any mortgage executed to a state or national bank or to a state or federally chartered credit union.
706.11(1)(g)
(g) Any mortgage executed to an insurer licensed to do business in this state.
706.11(1m)(a)1.
1. "Commitment" means an agreement under which a mortgagee agrees to advance to the mortgagor or another person funds that will be secured by the mortgage.
706.11(1m)(a)2.
2. "Construction mortgage" means a mortgage that secures an obligation incurred for the construction of an improvement on land, including the acquisition cost of the land.
706.11(1m)(b)
(b) An advance of funds, including accrued but unpaid interest on the advance, that is secured by a duly recorded mortgage specified in
sub. (1) (a) to
(d) or
(f) to
(h) and that is made after the mortgage has been recorded has the same priority as the mortgage if the advance is made before the mortgagee has actual knowledge of an intervening lien or, regardless of when the advance is made, if any of the following applies:
706.11(1m)(b)1.
1. The advance is made under a commitment that is entered into before the mortgagee has actual knowledge of an intervening lien, regardless of whether the advance was made after a default or other event outside of the mortgagee's control relieved the mortgagee of the obligation to advance funds under the commitment.
706.11(1m)(b)2.
2. The advance is made for the reasonable protection of the mortgagee's interest, including for the payment of real property taxes, property insurance or assessments or other maintenance charges imposed under a condominium declaration or a restrictive covenant.
706.11(1m)(b)3.
3. The mortgage is a construction mortgage that clearly states on the first page of the mortgage that it is a construction mortgage and the advance is made to enable completion of the contemplated improvement on the mortgaged premises.
706.11(2)
(2) State savings and loan associations shall have the priorities specified under
s. 215.21 (4).
706.11(3)
(3) The proceeds of any such mortgage referred to in this section shall, when paid out by a state savings bank, federal savings bank, state savings and loan association or federal savings and loan association, or of any other mortgage from any other source and received by the owner of the premises or by any contractor or subcontractor performing the work and labor, forthwith constitute a trust fund only in the hands of such owner, contractor or subcontractor for the payment proportionally of all claims due and to become due or owing from such contractor or subcontractor for lienable labor and materials until all such claims have been paid, and shall not be a trust fund in the hands of any other person. This section shall not create a civil cause of action against any person other than such owner, contractor or subcontractor. The use of any of such moneys by any owner, contractor or subcontractor for any other purpose until all claims, except those which are the subject of a bona fide dispute, have been paid in full, or proportionally in cases of a deficiency, shall constitute theft by such owner, contractor or subcontractor of any moneys so misappropriated. The district attorney of the county where the premises are situated shall on the complaint of any aggrieved party prosecute such owner, contractor or subcontractor misappropriating such moneys for such theft.
706.11 Annotation
The word "contractor" in sub. (3) includes an owner who acts as his own general contractor, and he can be held liable for conversion. Paulsen Lumber, Inc. v. Meyer, 47 W (2d) 621, 177 NW (2d) 884.
706.11 Annotation
Phrase "filed after the recording of such mortgage" in (1) modifies "all liens." Marine Bank Appleton v. Hietpas, Inc. 149 W (2d) 587, 439 NW (2d) 604 (Ct. App. 1989).
706.11 Annotation
Term "lien" in this section does not include lease. Grosskopf Oil, Inc. v. Winter, 156 W (2d) 575, 457 NW (2d) 514 (Ct. App. 1990).
706.12
706.12
Uniform vendor and purchaser risk act. 706.12(1)(1) Any contract made in this state for the purchase and sale of realty shall be interpreted as including an agreement that the parties shall have the following rights and duties, unless the contract expressly provides otherwise:
706.12(1)(a)
(a) If, when neither the legal title nor the possession of the subject matter of the contract has been transferred, all or a material part thereof is destroyed without fault of the purchaser or is taken by eminent domain, the vendor cannot enforce the contract, and the purchaser is entitled to recover any portion of the price that the purchaser has paid.
706.12(1)(b)
(b) If, when either the legal title or the possession of the subject matter of the contract has been transferred, all or any part thereof is destroyed without fault of the vendor or is taken by eminent domain, the purchaser is not thereby relieved from a duty to pay the price, nor is the purchaser entitled to recover any portion thereof that the purchaser has paid.
706.12(2)
(2) This section shall be so construed as to make uniform the law of those states which enact it.
706.12(3)
(3) This section may be cited as the uniform vendor and purchaser risk act.
706.12 History
History: 1975 c. 422;
1993 a. 486.
706.13
706.13
Slander of title. 706.13(1)(1) In addition to any criminal penalty or civil remedy provided by law, any person who submits for filing, entering in the judgment and lien docket or recording, any lien, claim of lien, lis pendens, writ of attachment, financing statement or any other instrument relating to a security interest in or the title to real or personal property, and who knows or should have known that the contents or any part of the contents of the instrument are false, a sham or frivolous, is liable in tort to any person interested in the property whose title is thereby impaired, for punitive damages of $1,000 plus any actual damages caused by the filing, entering or recording.
706.13(2)
(2) This section applies to any person who causes another person to act in the manner specified in
sub. (1).
706.13(3)
(3) This section does not apply to a register of deeds or other government employe who acts in the course of his or her official duties and files, enters or records any instrument relating to title on behalf of another person.
706.13 Annotation
Enactment of this section did not create a cause of action nor destroy the common-law right of recovery. Schlytter v. Lesperance, 62 W (2d) 661, 215 NW (2d) 552.
706.13 Annotation
When lawsuit is commenced under this section, conditional rather than absolute privilege applies to filing of lis pendens. Kensington Development v. Israel, 142 W (2d) 894, 419 NW (2d) 241 (1988).
706.13 Annotation
Lis pendens filing not privileged where there is no relationship between filing and underlying action. Larson v. Zilz, 151 W (2d) 637, 445 NW (2d) 699 (Ct. App. 1989).
706.13 Annotation
For recovery for slander of title, it is not necessary in all cases to prove the loss of an actual sale. The trial court must consider whether it is reasonable under the circumstances to require proof that the slander prevented a particular sale, and if not, the court must determine the degree of particularity required. Tym v. Ludwig, 196 W (2d) 375, 538 NW (2d) 600 (Ct. App. 1995).
706.14
706.14
Transitional and curative provisions. The operation or effect of a conveyance made or recorded in accordance with the provisions of any prior law of this state, or thereafter validated, perfected or cured under any such prior law, shall not be impaired by any provision of this chapter.
706.15
706.15
Liens against public officials or employes. No lien may be filed, entered or recorded against the real or personal property of any official or employe of the state or any political subdivision of the state, relating to an alleged breach of duty by the official or employe, except after notice and a hearing before a court of record and a finding by the court that probable cause exists that there was a breach of duty.
706.15 History
History: 1979 c. 221;
1995 a. 224.
