Ownership, Interests, Title and Transfer of Property
Real Estate Contracts: Formation and Enforceability
A Wisconsin real estate contract needs offer, acceptance, consideration, capacity, lawful purpose, and - because of the statute of frauds in ch. 706 - a writing signed by the parties to be bound, containing the essential terms: the parties, a description of the land sufficient to identify it, the price, and the terms of payment. An oral promise to sell land is unenforceable; an oral listing agreement is likewise a problem because agency agreements must be written.
Mechanics that generate questions
- A counteroffer terminates the original offer; the offeree becomes the offeror.
- Acceptance must be unequivocal and communicated; a conditional "yes" is a counteroffer.
- Delivery matters - an accepted offer sitting in a drawer is not binding until delivered.
- Time is of the essence clauses make deadlines enforceable; missing a contingency deadline can waive the contingency.
- Amendments must be in writing and signed by both parties (WB-40).
- Earnest money is not required for formation, but failure to deliver it as agreed can be a default.
Worked example
Seller lists at $350,000. Buyer offers $340,000 with a 10-day inspection. Seller writes "accepted at $345,000." That is a counteroffer; the buyer may accept, reject, or counter again, and the original $340,000 offer no longer exists.
Trap: assuming an accepted offer is fully binding before the buyer delivers earnest money and any required signatures, or treating a signed counteroffer as an amendment to a live contract when no contract yet exists.
Ownership, Interests, Title, and Transfer
Ownership questions test the bundle of rights and how those rights are held and conveyed. The fee simple estate is the broadest; a life estate is measured by a life; leaseholds and easements are lesser interests. Encumbrances divide into liens (mortgages, judgments, tax liens) and non-monetary encumbrances (easements, restrictions, encroachments).
Forms of co-ownership
- Tenancy in common - separate, unequal, inheritable shares; no survivorship.
- Joint tenancy - equal shares with right of survivorship; severable by conveyance.
- Marital property (ch. 766) - Wisconsin's community-property regime; a conveyance of marital property generally requires the signatures of both spouses, including a non-titled spouse.
Transfer and title
Deeds must be in writing, identify the parties and land, be signed by the grantor (and spouse where marital property applies), and be delivered. A warranty deed carries covenants; a quitclaim deed conveys whatever interest the grantor has and nothing more. Recording in the county register of deeds gives constructive notice; Wisconsin protects later purchasers for value who take without notice. Title insurance covers title defects and typically excludes zoning and matters the buyer created.
Homestead: Wisconsin's homestead exemption protects up to $75,000 of equity in an owner-occupied dwelling from execution on a judgment.
Worked example
Two siblings take title "as joint tenants." One deeds her half to a friend. The joint tenancy is severed as to that half, and the friend holds as tenant in common with the remaining sibling - no survivorship between them.
Trap: assuming a quitclaim deed is invalid or that it carries warranties; it is valid but warranty-free.