Nonexistence, incapacity or incompetency.
Nonexistence, acts in excess of legal powers or legal incapacity or incompetency of any purported person or legal entity, whether natural or artificial, foreign or domestic, provided the recorded conveyance or instrument affecting the real estate shall purport to have been duly executed by such purported person or legal entity, and shall have appeared of record for 5 years.
Facts not asserted of record.
Any fact not appearing of record, but the opposite or contradiction of which appears affirmatively and expressly in a conveyance, affidavit or other instrument of record in the chain of title of the real estate affected for 5 years. Such facts may, without limitation by noninclusion, relate to age, sex, birth, death, capacity, relationship, family history, descent, heirship, names, identity of persons, marriage, marital status, homestead, possession or adverse possession, residence, service in the armed forces, conflicts and ambiguities in descriptions of land in recorded instruments, identification of any recorded plats or subdivisions, corporate authorization to convey, and the happening of any condition or event which terminates an estate or interest.
Defects in tax deed.
Nonexistence or illegality of any proceedings from and including the assessment of the real estate for taxation up to and including the execution of the tax deed after the tax deed has been of record for 5 years.
Interests not of record within 30 years.
Any interest of which no affirmative and express notice appears of record within 30 years.
(2) Notice of prior claim.
A purchaser has notice of a prior outstanding claim or interest, within the meaning of this section wherever, at the time such purchaser's interest arises in law or equity:
Such purchaser has affirmative notice apart from the record of the existence of such prior outstanding claim, including notice, actual or constructive, arising from use or occupancy of the real estate by any person at the time such purchaser's interest therein arises, whether or not such use or occupancy is exclusive; but no constructive notice shall be deemed to arise from use or occupancy unless due and diligent inquiry of persons using or occupying such real estate would, under the circumstances, reasonably have disclosed such prior outstanding interest; nor unless such use or occupancy is actual, visible, open and notorious; or
Notice of record within 30 years.
There appears of record in the chain of title of the real estate affected, within 30 years and prior to the time at which the interest of such purchaser arises in law or equity, an instrument affording affirmative and express notice of such prior outstanding interest conforming to the requirements of definiteness of sub. (1) (b)
The applicable provisions of sub. (1) (c)
requiring that an instrument remain for a time of record, have not been fully satisfied.
(3) When prior interest not barred.
This section shall not be applied to bar or infringe any prior outstanding interest in real estate:
Public service corporations, railroads, electric cooperatives, trustees, natural gas companies, governmental units.
While owned, occupied or used by any public service corporation, any railroad corporation as defined in s. 195.02 (1)
, any water carrier as defined in s. 195.02 (5)
, any electric cooperative organized and operating on a nonprofit basis under ch. 185
, any natural gas company, as defined in 15 USC 717a
(6), or any trustee or receiver of any such corporation, electric cooperative, or natural gas company, or any mortgagee or trust deed trustee or receiver thereof; nor any such interest while held by the United States, the state or any political subdivision or municipal corporation thereof; or
Unplatted, unimproved, unused, etc.
Which, at the time such subsequent purchaser's interest arises, is unplatted, vacant and unoccupied, unused, unimproved and uncultivated; except that this paragraph shall not apply to prior interests dependent for validity or priority upon the circumstances described in sub. (1) (a)
(4) Chain of title: definition.
The term “chain of title" as used in this section includes instruments, actions and proceedings discoverable by reasonable search of the public records and indexes affecting real estate in the offices of the register of deeds and in probate and of clerks of courts of the counties in which the real estate is located; a tract index shall be deemed an index where the same is publicly maintained.
Nothing in this section shall be construed to raise or support any inference adverse or hostile to marketability of titles.
(6) Effective date.
This section shall take effect and may be invoked by qualified purchasers without notice as defined in sub. (2)
whose interests arise on or after July 1, 1968, and by their successors in interest thereafter.
This section does not create or govern interests in land but deals with circumstances when a purchaser of land will be held to have notice of adverse interests. Interests arising through adverse possession or use are governed by ch. 893. Rock Lake Estates Unit Owners Association, Inc. v. Town of Lake Mills, 195 Wis. 2d 348
, 536 N.W.2d 415
(Ct. App. 1995), 94-2488
A purchaser of land has 3 sources of information from which to learn of rights to the land: 1) records in the office of register of deeds; 2) other public records that are usually not recorded, such as judgments and liens; and 3) the land itself, to find rights that arise by virtue of possession or use. The purchaser is chargeable with knowledge of the location of the land's boundaries as against 3rd persons. Hoey Outdoor Advertising, Inc. v. Ricci, 2002 WI App 231
, 256 Wis. 2d 347
, 653 N.W.2d 763
Sub. (2) (b) does not require purchasers for value to find, in the absence of a proper recording, that an interest could possibly be discovered. Such a requirement would be contrary to the very purpose of the recording statutes, to ensure a clear and certain system of property conveyance. Associates Financial Services Company of Wisconsin, Inc. v. Brown, 2002 WI App 300
, 258 Wis. 2d 915
, 656 N.W.2d 56
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 s. 706.08 (1) (a) who cannot claim priority. The Bank of New Glarus v. Swartwood, 2006 WI App 224
, 297 Wis. 2d 458
, 725 N.W.2d 944
The notice requirements in sub. (2) explain when use or occupancy gives a buyer a duty to inquire about rights held by others. Nothing in that section distinguishes between prescriptive rights and improperly recorded rights. Anderson v. Quinn, 2007 WI App 260
, 306 Wis. 2d 686
, 743 N.W.2d 492
Marketable title and stale records: Clearing exceptions and closing deals. Halligan, WBB May, 1986.
Nothing in this chapter limits a spouse's remedy against the other spouse under ch. 766
for misuse of marital property.
History: 1983 a. 186
Forms, construction. 706.10(1)(1)
The several terms and forms of conveyance authorized by law or in common use in this state on July 1, 1971, shall have the same operation and effect under this chapter as formerly, except as this chapter may expressly provide to the contrary; but this section shall not preclude the adoption or use of other, different or more concise forms which conform to the requirements of this chapter.
No conveyance shall be void for the reason that at the time of delivery thereof such lands are in actual possession of a person claiming under title adverse to the grantor.
In conveyances of lands words of inheritance shall not be necessary to create or convey a fee, and every conveyance shall pass all the estate or interest of the grantor unless a different intent shall appear expressly or by necessary implication in the terms of such conveyance.
A quitclaim deed shall pass all of the interest in or appurtenant to the land described which the grantor could lawfully convey, but shall not warrant or imply the existence, quantity or quality of any such interest.
A conveyance by which the grantor contracts to warrant the land or its title shall be construed according to its terms, under rules of law for construction of contracts. A conveyance by which the grantor warrants the land or its title shall be construed, except as the terms of the conveyance may otherwise provide, to include covenants, for the benefit of the grantee, the grantee's heirs, successors and assigns, that the grantor at the time of conveyance is lawfully seized of the land; has good right to convey the same land or its title; that the same land or its title is free from all encumbrance; and that the grantor, the grantor's heirs and personal representatives will forever guarantee and defend the title and quiet possession of the land against all lawful claims whatever originating prior to the conveyance, except as the claims may arise out of open and notorious rights of easement, or out of public building, zoning or use restrictions.
Except as provided in sub. (7)
and except as otherwise provided by law, no warranty or covenant shall be implied in any conveyance, whether or not such conveyance contains special warranties or covenants. No mortgage shall be construed as implying a covenant for the payment of the sum thereby intended to be secured, and when there shall be no express covenant for such payment contained in the mortgage and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee, shall be confined to the lands mentioned in the mortgage.
In the absence of an express or necessarily implied provision to the contrary, a conveyance evidencing a transaction under which the grantor undertakes to improve the premises so as to equip them for grantee's specified use and occupancy, or to procure such improvement under grantor's direction or control, shall imply a covenant that such improvement shall be performed in a workmanlike manner, and shall be reasonably adequate to equip the premises for such use and occupancy.
Sub. (5) confirms that the rules of contract construction are to be used in interpreting the covenants of a deed. The measure of damages for breach of a covenant is the common law measure of damages for breach of warranty of title. Schorsch v. Blader, 209 Wis. 2d 401
, 563 N.W.2d 538
(Ct. App. 1997), 96-1220
A warranty deed grants a present fee simple interest. A purported reservation of a power of appointment in a warranty deed is ineffective. Powers may be reserved and lesser interests granted, but not by warranty deed. Lucareli v. Lucareli, 2000 WI App 133
, 237 Wis. 2d 487
, 614 N.W.2d 60
A necessary implication under sub. (3) is one that is so clear as to be express; it is a required implication. The words “heirs and assigns," or any similar language, are unnecessary under sub. (3) to indicate a transferable interest. As a matter of law, “Grantee" has the exact same meaning as “Grantee and his heirs and assigns" unless another meaning is expressly stated or implied. Therefore, “heirs and assigns" need not be construed as having any legal effect and the use of the term in a grant of water flowage rights and not in a grant of sand removal rights in the same deed did not create a necessary implication that the sand rights were non-transferable. Borek Cranberry Marsh v. Jackson County, 2010 WI 95
, 328 Wis. 2d 613
, 785 N.W.2d 615
Performance in a “workmanlike manner" under sub. (7) requires a builder to perform work with the care and skill and provide suitable materials as contractors of reasonable prudence, skill, and judgment in similar construction would. Riverfront Lofts Condominium Owners Association v. Milwaukee/Riverfront Properties Limited Partnership, 236 F. Supp. 2d 918
For the premises not to be “reasonably adequate for their intended use and occupancy" under sub. (7) a showing of negligence is not necessary. The defect must be fundamental to the habitability of the building. A defendant must meet a high standard to establish a disclaimer of the protections of sub. (7). Riverfront Lofts Condominium Owners Association v. Milwaukee/Riverfront Properties Limited Partnership, 236 F. Supp. 2d 918
Builder-vendor liability for construction defects in houses. Kirschnik, 55 MLR 369.
Duty to disclose limited to commercial vendors. 64 MLR 547 (1981).
Applicability of general transfers at death provisions.
applies to transfers at death under a conveyance.
History: 1997 a. 188
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)
Any mortgage executed to a federal savings and loan association or state or federal savings bank.
Any mortgage executed to the department of veterans affairs under s. 45.352
, 1971 stats.
Any mortgage assigned to or executed to any of the following:
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.
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.
Any mortgage executed to a state or national bank or to a state or federally chartered credit union.
Any mortgage executed to an insurer licensed to do business in this state.
Any mortgage executed to an institution chartered by the federal farm credit administration under 12 USC 2002
(a) that is part of the federal farm credit system created under 12 USC 2001
“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.
“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.
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)
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:
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.
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.
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.
State savings and loan associations shall have the priorities specified under s. 215.21 (4)
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.
does not apply to a 2nd mortgage assigned to or executed to the department of veterans affairs under s. 45.80 (4) (a) 1.
, 1989 stats., or s. 45.37 (3)
, 2017 stats.
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 Wis. 2d 621
, 177 N.W.2d 884
“Filed after the recording of such mortgage" in sub. (1) modifies “
all liens." Marine Bank Appleton v. Hietpas, Inc. 149 Wis. 2d 587
, 439 N.W.2d 604
(Ct. App. 1989).
“Lien" in this section does not include a lease. Grosskopf Oil, Inc. v. Winter, 156 Wis. 2d 575
, 457 N.W.2d 514
(Ct. App. 1990).
Sub. (1) (d) applies to all state banks, not just Wisconsin chartered state banks. To hold otherwise would discourage banks chartered in states other than Wisconsin from lending money to investors hoping to invest in Wisconsin projects and likely trigger the cost of capital for Wisconsin projects to rise. Lowell Management Services, Inc. v. Security Bank of Kansas City, 2009 WI App 149
, 321 Wis. 2d 589
, 774 N.W.2d 811
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:
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.
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.
This section shall be so construed as to make uniform the law of those states which enact it.
This section may be cited as the uniform vendor and purchaser risk act.
History: 1975 c. 422
; 1993 a. 486
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.
This section applies to any person who causes another person to act in the manner specified in sub. (1)
This section does not apply to a register of deeds or other government employee 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.
Enactment of this section did not create a cause of action nor destroy the common-law right of recovery. Schlytter v. Lesperance, 62 Wis. 2d 661
, 215 N.W.2d 552
When a lawsuit is commenced under this section, conditional rather than absolute privilege applies to the filing of a lis pendens. Kensington Development v. Israel, 142 Wis. 2d 894
, 419 N.W.2d 241
The filing of a lis pendens is not privileged when there is no relationship between the filing and the underlying action. Larson v. Zilz, 151 Wis. 2d 637
, 445 N.W.2d 699
(Ct. App. 1989).
To recover 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 Wis. 2d 375
, 538 N.W.2d 600
(Ct. App. 1995), 94-2859
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.