Except as provided in par. (b)
, an interest in minerals lapses if the interest in minerals was not used during the previous 20 years.
An interest in minerals which was not used during the 20-year period prior to July 1, 1984, does not lapse if the interest in minerals is used within 3 years after July 1, 1984.
An interest in minerals which was used during the period from 17 to 20 years prior to July 1, 1984, does not lapse if the interest in minerals is used within 3 years after July 1, 1984.
Statement of claim; recording; requirements.
If the owner of an interest in minerals uses the interest in minerals by recording a statement of claim, the statement of claim shall comply with this subsection. The statement of claim shall contain the name and address of the owner of the interest in minerals, a description of the location and boundary of the interest in minerals and a reference to the recorded instrument which created the interest in minerals. The statement of claim shall be recorded with the register of deeds for the county in which the interest in minerals is located.
Cure of lapse.
The lapse of an interest in minerals under sub. (3)
is cured if the owner of the interest in minerals records a statement of claim complying with all of the requirements of sub. (4)
before the surface owner records a statement of claim under sub. (6) (a)
or before a statement of claim takes effect under sub. (6) (b) 1.
, whichever is later.
Claim of lapsed interest in minerals. 706.057(6)(a)
The owner of the land under which an interest in minerals exists may claim that portion of a lapsed interest in minerals which lies beneath the owner's land by recording a statement of claim. The statement of claim shall contain the name and address of the owner of the land under which the lapsed interest in minerals is located and a description of the land under which the interest in minerals is located. The statement of claim shall be recorded with the register of deeds for the county in which the land is located.
Except as provided in subd. 2.
, a statement of claim which is recorded under par. (a)
before the lapse of the interest in minerals to which the claim applies takes effect when the interest in minerals lapses.
A statement of claim which is recorded under par. (a)
before the lapse of the interest in minerals to which the claim applies is void 6 years after the statement of claim is recorded if the interest in minerals does not lapse within that 6-year period.
Statement of claim; recording; register of deeds' duty.
The register of deeds shall provide copies of the uniform form for statements of claim under subs. (4)
. Upon receipt of a statement of claim under sub. (4)
in the office of the register of deeds, the register of deeds shall record the claim in a manner which will permit the existence of an interest in minerals to be determined by reference to the parcel or parcels of land above the interest in minerals. The claimant shall pay the recording fee under s. 59.43 (2)
The owner of an interest in minerals which is the subject of a claim under sub. (6) (a)
, within 3 years after the claim is recorded with the register of deeds or within 3 years after the claim takes effect as provided under sub. (6) (b) 1.
, whichever is later, may bring an action for a declaratory judgment or declaration of interest on the ownership of the interest in minerals. The action shall be commenced in the circuit court in the county where the interest in minerals is located.
If the court finds that the owner of the interest in minerals used the interest in minerals within the time limits specified under sub. (3)
or that the owner of the interest in minerals recorded a claim under sub. (5)
before the surface owner recorded a claim under sub. (6) (a)
or before the claim took effect as provided under sub. (6) (b) 1.
, whichever is later, the court shall issue a judgment declaring that the interest in minerals is not lapsed.
If the court finds that the owner of the interest in minerals did not use the interest in minerals within the time limits specified under sub. (3)
and did not record the claim under sub. (5)
before the surface owner recorded the claim under sub. (6) (a)
or before the claim took effect as provided under sub. (6) (b) 1.
whichever is later, the court shall issue a judgment affirming the surface owner's claim.
Upon the issuance of a judgment affirming the surface owner's claim or, if no action is brought under par. (a)
, at the end of the 3-year period after the surface owner's claim is recorded or at the end of the 3-year period after the claim takes effect as provided under sub. (6) (b) 1.
, whichever is later, the ownership of the interest in minerals reverts to the owner of the land under which the lapsed interest in minerals is located and title to the interest in minerals is merged with the title to the surface of the land.
No person may waive or agree to waive the provisions of this section and any waiver or agreement of this type is void.
Sub. (3) (a) sets forth a general rule that an interest in minerals must be used at least once every 20 years to avoid lapsing. Sub. (3) (b) creates a three-year grace period—lasting from July 1, 1984, to July 1, 1987—during which owners could use their rights and thereby prevent the automatic lapse that would have otherwise occurred under sub. (3) (a). The use of an interest in mineral rights during the three-year period does not permanently prevent that interest from lapsing. Instead, once an interest has been used during the requisite three-year period, it is again subject to sub. (3) (a) and will lapse if not used at least once every 20 years. Lakeland Area Property Owners Ass'n, U.A. v. Oneida County, 2021 WI App 19
, 396 Wis. 2d 622
, 957 N.W.2d 605
The U.S. Supreme Court's conclusions in Texaco
, 454 U.S. 516
(1982), compel a conclusion in this case that sub. (3) does not result in an unconstitutional taking of property without just compensation, nor does the statute violate due process for lack of notice. Similar to the statute at issue in Texaco
, sub. (3) provides that a mineral rights owner's interest lapses if not used for 20 years and sets forth a grace period during which owners who did not use their mineral rights during the previous twenty years could take action to prevent those rights from lapsing. Lakeland Area Property Owners Ass'n, U.A. v. Oneida County, 2021 WI App 19
, 396 Wis. 2d 622
, 957 N.W.2d 605
Due process requires that every owner of a recorded interest, including a mineral interest under this section, be provided written notice of an application for a tax deed. 74 Atty. Gen. 59
Under this section, the owner of land under which mineral rights have lapsed must record a claim to the lapsed mineral rights in order to foreclose a separate mineral rights owner from curing the lapse. 79 Atty. Gen. 61
Any instrument may be acknowledged, or its execution otherwise authenticated by its signators, as provided by the laws of this state; or as provided in this section or ch. 140
Any public officer entitled by virtue of his or her office to administer oaths, and any member in good standing of the State Bar of Wisconsin, may authenticate one or more of the signatures on an instrument relating to lands in this state, by endorsing the instrument “Acknowledged," “Authenticated," or “Signatures Guaranteed," or other words to similar effect, adding the date of authentication, his or her own signature, and his or her official or professional title. The endorsement, unless expressly limited, shall operate as an authentication of all signatures on the instrument; and shall constitute a certification that each authenticated signature is the genuine signature of the person represented; and, as to signatures made in a representative capacity, shall constitute a certification that the signer purported, and was believed, to be such representative.
Affidavits shall be authenticated by a certificate of due execution of the instrument, executed by a person entitled to administer oaths.
In addition to any criminal penalty or civil remedy otherwise provided by law, knowingly false authentication of an instrument shall subject the authenticator to liability in tort for compensatory and punitive damages caused thereby to any person.
Nonrecording, effect. 706.08(1)(a)
Except for patents issued by the United States or this state, or by the proper officers of either, every conveyance that is not recorded as provided by law shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate or any portion of the same real estate whose conveyance is recorded first.
A conveyance of mineral interests which is not recorded in the office of the register of deeds of the county in which the land is located, within 30 days after it is signed by the lessor, is void.
Where a public tract index or abstract of title index is maintained, an instrument properly indexed therein and recorded at length at the place there shown shall be deemed to be duly recorded for purposes of this section, despite any error or omission in the process of including the instrument, or prior instruments in the same chain of title, in other records. Where an instrument is not properly indexed in such tract or abstract of title index, or where such index is not publicly maintained, the instrument shall be deemed to be duly recorded only if the instrument, together with prior instruments necessary to trace title by use of alphabetical indexes by names of parties, are properly indexed in such alphabetical indexes, and recorded at length at the places there shown. Wherever an instrument is duly recorded hereunder, its record shall be effective as of the date and hour at which it is shown by the general index to have been accepted for record.
When an express trust is created, but its existence is not disclosed in a recorded conveyance to the trustee, the title of the trustee shall be deemed absolute as against the subsequent creditors of the trustee not having notice of the trust and as against purchasers from such trustee without notice and for a valuable consideration.
It shall be conclusively presumed that a person is a trustee of a valid express trust and has full power of conveyance if all of the following occur:
The person is designated as trustee and holds an interest in land as trustee.
The person's authority and powers as trustee are not set forth in a recorded instrument.
When a conveyance purports to be absolute in terms, but is made or intended to be made defeasible by force of another instrument for that purpose, the original conveyance shall not be thereby defeated or affected as against any person other than the maker of the defeasance or the maker's heirs or devisees or persons having actual notice thereof, unless the instrument of defeasance has been recorded in the office of the register of deeds of the county where the lands lie.
The recording of an assignment of a mortgage shall not in itself be deemed notice of such assignment to the mortgagor so as to invalidate any payment made to the mortgagee without actual notice of such assignment.
No letter of attorney or other instrument containing a power to convey lands, when executed and recorded under this chapter, shall be deemed to be revoked by any act of the party by whom it was executed unless the instrument containing such revocation is also recorded in the same office in which the instrument containing the power was recorded, and such record shall import notice to all persons, including the agent named in said letter of attorney of the contents thereof. The death of the party executing such letter of attorney shall not operate as a revocation thereof as to the attorney or agent until the attorney or agent has notice of the death, or as to one who without notice of such death in good faith deals with the attorney or agent.
An unrecorded conveyance, if delivered, is valid against judgment creditors since they are not bona fide creditors for value. West Federal Savings & Loan Ass'n v. Interstate Investment, Inc., 57 Wis. 2d 690
, 205 N.W.2d 361
A purchaser having constructive notice that there may have been an unrecorded conveyance was not a “purchaser in good faith" under sub. (1) (a). Kordecki v. Rizzo, 106 Wis. 2d 713
, 317 N.W.2d 479
An original mortgagee's knowledge of a prior mortgage not properly of record will not be imputed to an assignee of the mortgage with no knowledge of the prior mortgage and does not render the assignee not a purchaser in good faith under sub. (1) (a) who cannot claim priority. Bank of New Glarus v. Swartwood, 2006 WI App 224
, 297 Wis. 2d 458
, 725 N.W.2d 944
Correction instruments. 706.085(1)(1)
Entitled to be recorded; purposes.
An instrument correcting a previously recorded conveyance shall be entitled to record in accordance with s. 706.05
in the office of the register of deeds of the county in which the conveyance is recorded and shall include one or more of the following:
The correction of a legal description, including a distance; angle; direction; bearing; chord; lot, block, unit, or building number or letter; appurtenant easement; section number; township name or number; municipality, county, or state name; range number or meridian; certified survey map number; or subdivision or condominium name.
The addition, correction, or clarification of information other than a legal description, including any of the following information:
A party's name, including the spelling of the name; a first or middle name or initial; a name suffix, such as senior or junior; alternate names by which the party is known; or a description of an entity as a corporation, company, or similar identifier.
The recording data for an instrument referenced in the conveyance.
The addition of an acknowledgment or authentication.
The disclaimer by a grantee under a deed of that party's interest in the real property that is the subject of the deed.
The addition of a mortgagee's consent or subordination.
A correction instrument shall be acknowledged or authenticated in accordance with s. 706.06
or ch. 140
. It shall recite the document number of the conveyance, the names of the grantor and grantee, and, if given on the conveyance, the volume and page where the conveyance is filed or recorded.
Except as otherwise provided in this paragraph, a correction instrument that is executed after May 28, 2010, may be executed by a person having personal knowledge of the circumstances of the conveyance and of the facts recited in the correction instrument, including the grantor, the grantee, the person who drafted the conveyance that is the subject of the correction instrument, or the person who acted as the settlement agent in the transaction that is the subject of the conveyance, and shall recite the basis for the person's personal knowledge. A correction instrument that was executed before May 28, 2010, is not rendered ineffective by reason of the instrument's failure to recite that the maker had the knowledge or capacity required under this subdivision.
A correction instrument that makes the correction under sub. (1) (e)
shall be signed by the consenting party, or an heir, successor, or assignee of the party.
A correction instrument that adds, removes, or replaces a divisible parcel in a conveyance shall be signed by the following persons:
If the correction instrument supplies a lot, block, unit, or building number or letter that was omitted from a conveyance, by any party identified in subd. 1.
If a parcel is being added to a conveyance that also correctly conveys other land, only by the grantor.
If a parcel is being removed from a conveyance that also correctly conveys other land, only by the grantee.
If a lot or unit number or letter is being corrected and the lot or unit incorrectly recited in the conveyance is also owned by the grantor, only by the grantee.
If a lot, block, unit, or building number or letter is being corrected and the lot or unit incorrectly recited in the conveyance is not also owned by the grantor, by any party identified in subd. 1.
A person who executes and records a correction instrument shall send notice of that fact by 1st class mail to all parties to the transaction that was the subject of the conveyance at their last-known addresses.
Effect of record.
All of the following apply to the record of a correction instrument that complies with this section, or a certified copy of the record:
It is prima facie evidence of the facts stated in the instrument; is presumed to be true, subject to rebuttal; and constitutes notice to a purchaser under s. 706.09
of the facts recited in the instrument.
It may be asserted by a purchaser for a valuable consideration against any person making an adverse or inconsistent claim under s. 706.09 (1) (i)
Previously recorded instruments are valid.
Any instrument recorded before May 28, 2010, that purports to correct a previously recorded conveyance and that would have been a valid correction instrument under this section had this section been in effect when the instrument was recorded is hereby validated.
Practice Tips: Correcting Real Estate Documents. Andrew. Wis. Law. Oct. 2010.
Notice of conveyance from the record. 706.09(1)(1)
When conveyance is free of prior adverse claim.
A purchaser for a valuable consideration, without notice as defined in sub. (2)
, and the purchaser's successors in interest, shall take and hold the estate or interest purported to be conveyed to such purchaser free of any claim adverse to or inconsistent with such estate or interest, if such adverse claim is dependent for its validity or priority upon:
Nondelivery, or conditional or revocable delivery, of any recorded conveyance, unless the condition or revocability is expressly referred to in such conveyance or other recorded instrument.
Conveyance outside chain of title not identified by definite reference.
Any conveyance, transaction or event not appearing of record in the chain of title to the real estate affected, unless such conveyance, transaction or event is identified by definite reference in an instrument of record in such chain. No reference shall be definite which fails to specify, by direct reference to a particular place in the public land record, or, by positive statement, the nature and scope of the prior outstanding interest created or affected by such conveyance, transaction or event, the identity of the original or subsequent owner or holder of such interest, the real estate affected, and the approximate date of such conveyance, transaction or event.
Unrecorded extensions of interests expiring by lapse of time.
Continuance, extension or renewal of rights of grantees, purchasers, optionees, or lessees under any land contract, option, lease or other conveyance of an interest limited to expire, absolutely or upon a contingency, within a fixed or determinable time, where 2 years have elapsed after such time, unless there is recorded a notice or other instrument referring to such continuance, extension or renewal and stating or providing a later time for the enforcement, exercise, performance or termination of such interest and then only if less than 2 years have elapsed after such later time. This paragraph shall not apply to life estates, mortgages or trust deeds, nor shall it inferentially extend any interest otherwise expiring by lapse of time.
Nonidentity of persons in chain of title.
Nonidentity of persons named in, signing or acknowledging one or more related conveyances or instruments affecting real estate, provided the persons appear in such conveyances under identical names or under variants thereof, including inclusion, exclusion or use of: commonly recognized abbreviations, contractions, initials, or foreign, colloquial, or other equivalents; first or middle names or initials; simple transpositions which produce substantially similar pronunciation; articles or prepositions in names or titles; description of entities as corporations, companies, or any abbreviation or contraction of either; name suffixes such as senior or junior; where such identity or variance has appeared of record for 5 years.
Homestead of the spouse of any transferor of an interest in real estate, if the recorded conveyance purporting to transfer the homestead states that the person executing it is single, unmarried or widowed or fails to indicate the marital status of the transferor, and if the conveyance has, in either case, appeared of record for 5 years. This paragraph does not apply to the interest of a married person who is described of record as a holder in joint tenancy or of marital property with that transferor.