WI Underwriting References

Environmental Endorsement Statute

WI: W.S.A. Chapter 292.11(13); W.S.A. Chapter 292.31; W.S.A. Chapter 292.81

Judgments and Liens

A judgment creditor who obtains a lien on land by docketing a judgment is not a purchaser for value, and the fact that a judgment creditor may be without notice of a prior equitable interest when the judgment is docketed is not sufficient to give the lien priority over that of a prior equitable mortgagee. The failure of notice does not inure to the benefit of a subsequent judgment creditor as he or she does not part with any value in reliance on the misleading state of the debtor's title. IFC Collateral Corp. v. Commercial Units, Inc. 51 Wis. 2d 41, 186 N.W.2d 214 (1971).

By entering a judgment in the judgment and lien docket, a judgment creditor obtains a 10-year statutory lien on real property of the debtor located in the county in which the judgment was docketed, but does not create a statutory lien on the debtor's personal property. Instead, a judgment creditor obtains an unsecured, inchoate interest with regard to the debtor's personal property, tangible and intangible, against which to levy. Execution, garnishment, and turnover orders applying property in satisfaction of a judgment are all methods of levying the judgment debtor's personal property. Associated Bank N.A. v. Collier, 2014 WI 62, 355 Wis. 2d 343, 852 N.W.2d 443, 11-2597.

In bankruptcy proceedings, the lien of a judgment obtained before discharge was not extinguished by discharge and could be applied to the proceeds of the bankruptcy sale of the real estate to which the lien attached. Wisconsin statutes do not provide that the lien is automatically extinguished by the discharge in bankruptcy; rather, they require an application by the discharged bankrupt to the court in which the judgment was entered, and the entry by that court of an order of satisfaction. In re Tillman Produce Co., Inc. 396 F. Supp. 500 (1975).

Mechanics Liens

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What is a construction or mechanic’s lien?

Every State permits a person who supplies labor or materials for a construction project to claim a lien against the improved property. While some states differ in their definition of improvements and some states limit lien claims to buildings or structures, most permit the filing of a document with the local court that puts parties interested in the property on notice that the party asserting the lien has a claim. States differ widely in the method and time within which a party may act on their lien. Also varying widely are the requirements of written notices between property owners, contractors, subcontractors and laborers, and in some cases lending institutions. As a general rule, these statutes serve to prevent unpleasant surprises by compelling parties who wish to assert their legal rights to put all parties who might be interested in the property on notice of a claim or the possibility of a claim. This by no means constitutes a complete discussion of construction lien law and should not be interpreted as such. Parties seeking to know more about construction laws in their State should always consult their State statutes directly.

Who can claim a lien in this State?

Every person who performs any work or procures its performance or furnishes any labor or materials or plans or specifications for the improvement of land, and who complies with s. 779.02, shall have a lien therefor on all interests in the land belonging to its owners.

How long does a party have to claim a lien?

No lien shall exist and no action to enforce a lien shall be maintained unless within 6 months from the date the lien claimant furnished the last labor or materials a claim for the lien is filed in the office of the clerk of circuit court of the county in which the lands affected by the lien lie, and unless within 2 years from the date of filing a claim for lien an action is brought and summons and complaint filed.

Does this State require or provide for a notice from subcontractors and laborers to property owners?

Yes. No lien claim may be filed or action brought thereon unless, at least 30 days before timely filing of the lien claim, the lien claimant serves on the owner, personally or by registered mail with return receipt requested, a written notice of intent to file a lien claim. The notice is required to be given whether or not the claimant has been required to and has given a previous notice pursuant to s. 779.02. Such notice shall briefly describe the nature of the claim, its amount and the land and improvement to which it relates.

Every prime contractor who enters into a contract with the owner for a work of improvement on the owner’s land and who has contracted or will contract with any subcontractors or materialmen to provide labor or materials for the work of improvement shall include in any written contract with the owner the notice required by this paragraph, and shall provide the owner with a copy of the written contract. If no written contract for the work of improvement is entered into, the notice shall be prepared separately and served personally or by registered mail on the owner or authorized agent within 10 days after the first labor or materials are furnished for the improvement by or pursuant to the authority of the prime contractor. The notice warns of the lien rights of furishers of labor and materials.

Every person other than a prime contractor who furnishes labor or materials for an improvement shall have the lien and remedy under this subchapter only if within 60 days after furnishing the first labor or materials the person gives notice in writing, in 2 signed copies, to the owner either by personal service on the owner or authorized agent or by registered mail with return receipt requested to the owner or authorized agent at the last-known post-office address.

Does this State require a notice prior to starting work, or after work has been completed?

No. Wisconsin law does not provide for a notice of commencement or notice of completion as in some other States.

Does this State permit a person with an interest in property to deny responsibility for improvements?

No. Wisconsin law does not have a provision allowing a property owner to deny responsibility for improvements.

Is a notice attesting to the satisfaction of a lien provided for or required?

Every lien claimant, or the attorney who executed and filed a claim for lien on the claimant’s behalf, who has received satisfaction or tender of the claim with the costs of any action brought on the claim shall, at the request of any person interested in the premises affected and on payment of the costs of satisfying the same, execute and deliver the necessary satisfaction to the interested person. On filing the satisfaction with the clerk of circuit court, the clerk of circuit court shall enter satisfaction of the claim on the judgment and lien docket. Failure to execute and deliver the satisfaction or to satisfy the lien on the judgment and lien docket shall render the person so refusing liable to pay to the person requiring the satisfaction a sum equal to one-half of the sum claimed in the claim for lien.

See more at:

Mechanics Lien Flow Chart

Streets

Streets Exception - Metes and Bounds

We must take exception to it on all metes and bounds because the streets may have either shifted over time or more land is being used for it than how large the road legally is. The only way to remove it would be to require a staked survey that accurately depicts the road and research the roads chain to see if it can be removed.

Abandonment & Vacation

add an exception for the vacated street/alley even though they had an exception for the Notice vacating them. Sometimes, the vacation ordinance will grant an easement to public utilities, sometimes not. It’s always a good idea to add:

Rights, if any, of public utilities installed in vacated ________________ Street and the vacated, unnamed alley prior to the vacation thereof together with the right to enter onto the Land for the purposes of maintaining, repairing and replacing said utilities.

In some states, adjoining landowners may have a statutory easement for ingress/egress if the vacation would land lock them though it’s rare that you’ll have that situation.

Tenancies

For married couples: When title to property is vested in a married couple with no additional designation of tenancy, it is presumed to be as tenants in common, UNLESS the property is the married couple's homestead. If it is their homestead, the title, similar to Tenants by the Entirety, will pass to the last survivor without the need for probate.

Trusts And Trustees

Trust Certs

Wisconsin Certificate of Trust The certificate of trust is an unrecorded document executed by a trustee and presented to a party doing business with the trustee (such as a financial institution). The document is codified as part of the Wisconsin Trust Code at Wis. Stat. 701.1013.

In a trust arrangement, a settlor transfers assets another person who, as trustee, manages them for the benefit of the trust beneficiary. In lieu of presenting the entire trust instrument, which generally goes unrecorded in order to protect the settlor's estate plans, the certificate is an abstract containing only the information required of the trustee in order to conduct the business at hand. The document certifies that the trust exists and that the trustee has the authority to act in the pending transaction on behalf of the trust.

The certificate includes a statement that the trust exists and contains the name and date of the trust; the names of the settlor and all currently acting trustees; an inventory of the relevant powers of the trustee; and the name by which the trust vests title to property. The form also identifies anyone who holds a power to revoke the trust, and, when there are co-trustees, stipulates the authority of the trustees to authenticate trust documents. Additionally, the certificate requires a statement that the trust has not been modified, amended, or revoked so as to invalidate the facts presented.

In most cases, the certificate is not recorded. It may sometimes accompany a conveyance of real property out of the trust (a trustee's deed), verifying that the trustee has the authority to convey real property and confirming that the property is subject to the trust by providing the legal description of the property, as found in the trust agreement or conveyancing instrument into trust.

Statements made in the certificate may be relied on as fact; Wis. Stat. 701.1013 provides protection for persons relying in good faith on the information presented in the certificate. In addition to the certificate, the trustee may furnish excerpts from the trust instrument designating the trustee and establishing the trustee's power to act in the business at hand. Recipients of a certificate requesting that the trustee furnish the entire trust instrument, however, are open to liability.

The certificate may be signed by any trustee in the presence of a notary public. If the document is submitted for recording, it must conform to standards for recording established at Wis. Stat. 59.43(2m).

Water And Water Rights

Piers/Structures - 2021 Statute

New Statute for Riparian Rights on a Navigable Waterway

A law backed by the Wisconsin Realtors Association was signed by Gov. Tony Evers on June 18, 2021, creating a presumption that a riparian owner on a navigable waterway may place a pier or other structure in the water regardless of whether that owner holds the fee to the bed. The statute is 2021 Wisconsin Act 47 and can be found here: https://docs.legis.wisconsin.gov/2021/related/acts/47.pdf [wlta.memberclicks.net]

This statute effectively reverses the 2018 Wisconsin Supreme Court case of Movrich v. Lobermeier. Here the Court decided a case between siblings, finding that Movrich could not place a pier extending from his land into the flowage because his sister owned the underlying fee. The Wisconsin Realtors Association was concerned about the impact of Movrich on the real estate values on flowages and therefore sought action from the legislature.

The new statute does have some caveats: The owner of the land may not place a pier or other structure on the bed of another if that use is prohibited in the deed; prohibited by a written agreement; or prohibited by any other recorded instrument.

The right to use the bed is also subject to the rights of a hydroelectric operator. If the property is within the boundaries of a hydroelectric project, the use of the bed for placement of a pier is subject to the reasonable restrictions imposed by the hydroelectric operator. The statute allows the riparian owner to make an application to the hydroelectric operator for the placement of a pier.