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Continuing Legal Education for Wisconsin

CLEW Publications

Wisconsin Real Estate Law

By Scott C. Minter and Debra Peterson Conrad

Formerly by Walter Raushenbush and James McDonald

2008 Edition, 500 pages, $50.00

Completely Revised, Updated, and Expanded

The law school is proud to offer the 2008 edition of Wisconsin Real Estate Law, a book with a long history of service to the Wisconsin real estate community. Because earlier editions written by Walter Raushenbush and James MacDonald were widely used and referred to, Wisconsin Real Estate Law is regarded as a standard reference on real estate transactions for brokers, salespersons, lawyers, and other professionals. Scott C. Minter, a program attorney and lecturer at the law school, coauthored the 1994 edition and has assisted in the development and publication of this book since the law school published the 1984 edition.

We are pleased with the cooperation this project has continued to receive from the Wisconsin real estate community. The assistance of the Wisconsin REALTORS®Association has been of great value. Debra Peterson Conrad from the Wisconsin REALTORS® Association has joined in the authorship responsibilities. Her participation enriches the value of this book as a practice resource for both lawyers and real estate licensees. Her professional experience in shaping legislation, drafting forms, instructing association members, and responding to thousands of legal inquiries from association members each year is infused into the text.

Special Features of the 2008 Edition

  • Completely updated text
  • Helpful discussions and updated explanations tied to the listing contracts and offers to purchase forms
  • Expanded and updated discussions on important topics, such as the listing contract, offer to purchase, disclosure obligations, agency duties, marital property, landlord-tenant practices
  • Updated chapters on contract interpretation, contract remedies, lead-based paint, housing discrimination, land use controls, trust accounting
  • Updated collection of real estate statutes and administrative regulations

About the Authors

SCOTT C. MINTER is a lecturer and program attorney at the University of Wisconsin Law School. He was co-author of the 1994 edition of Wisconsin Real Estate Law. He has also authored Wisconsin Real Estate Trust Accounts (1998) and co-authored Wisconsin Real Estate Clauses (1986, 1988, 1995, 2000, and 2003 editions) published by the law school. Mr. Minter was a contributing author of the 1998 edition of Titles to Real Estate, authored by James Vance. He has served as a member of the Real Estate Contractual Forms Advisory Council of the Wisconsin Department of Regulation and Licensing since 1984.

DEBRA PETERSON CONRAD is director of legal services for the Wisconsin REALTORS® Association (WRA). Before joining the WRA, she was in private practice, emphasizing real estate, condominium, small business, trusts and probate law. Her responsibilities for the WRA include writing the monthly Legal Update, drafting WRA forms and other publications, supervising the WRA Legal Hotline (8,000 REALTOR® calls per year).

Contents

Chapter 1 State Regulation of Real Estate Brokerage
  • The General Structure of State Regulation of Real Estate Brokerage
  • The Department's Rule‑Making Power
  • The Department's Licensing Power
  • Licensing: Real Estate Broker or Salesperson
  • The Board's Disciplinary Power
  • Regulation of Time‑Share Salespersons

Chapter 2 The Broker and Salesperson

  • The Real Estate Broker's Role
  • Definition of "Broker"
  • Definition of "Salesperson"
  • Broker and Salesperson Compared and Contrasted
  • The Real Estate Broker, the Filling Out of Forms, and the Practice of Law

Chapter 3 Duties of a Broker and Salesperson as an Agent

  • The Concept of Agency
  • The Broker and Salesperson as an Agent
  • Multiple Representation
  • Multiple Simultaneous Transactions
  • Mandatory Broker Disclosure
  • Respondeat Superior
  • Self-Dealing Rules
  • Agency Law Terminology
  • When an Agent Fails to Fulfill the Duties Owed to Parties
Chapter 4 Disclosure and Misrepresentation Issues
  • The Importance of Disclosures
  • Consequences of Improper Misrepresentation
  • A Broker's Basic Disclosure Duties
  • Broker Disclosure Duty Exceptions
  • The Real Estate Condition Report and the Seller's Disclosure Duties
  • A Broker's Inspection Duties
  • Difference Between Puffing and Misrepresentation
  • Intentional Misrepresentation
  • Negligent Misrepresentation; Strict Responsibility
  • Did the Buyer "Justifiably" Rely on the Misrepresentation?
  • As-Is Clauses
  • Difference Between Representations and Warranties
  • Interstate Land Sales Full Disclosure Act
  • Use Value Assessments
  • Disclosure of Sex Offender Information in Real Estate Practice

Chapter 5 The Listing Contract

  • Listing Contract Overview
  • What the Law Requires in a Listing Contract
  • Other Provisions a Listing Contract Should Include
  • Rights and Obligations Under the Listing Contract
  • Miscellaneous Considerations
  • Listing Contract Endings
  • Listing Protection after Expiration of the Listing

Chapter 6 Buyer Agency

  • Buyer Agency Overview
  • What the Law Requires in Buyer Agency Agreements
  • Broker Authority to Act as Buyer's Agent
  • Buyer Clients Working with Other Agents
  • Buyer Agency Practice Issues and Rules
  • Collecting the Buyer's Broker's Fees
  • Buyer Agency Endings

Chapter 7 The Offer to Purchase

  • Preliminary Considerations
  • What the Law Requires for an Enforceable Offer; the Statute of Frauds
  • Parties to the Offer
  • Description of Property
  • Terms of the Transaction
  • Title and Method of Transfer
  • Property Condition Provisions
  • Contingencies
  • Other Provisions in the Offer to Purchase
  • Delivery and Presentation of Completed Offers
  • Suggested Contingency Clauses

Chapter 8 Closing the Real Estate Transaction

  • Closing in General
  • Typical Closing Documents
  • Furnishing Title Evidence Before Closing
  • Title Insurance
  • The Closing Title Search
  • The Danger of Construction Liens
  • Escrow of Closing Funds
  • Closing Statement
  • Proration of Property Taxes
  • Lottery Credit
  • Proration of Insurance
  • Other Prorations
  • Costs of Future Recording and Abstracting
  • Bill of Sale
  • Wisconsin Real Estate Transfer Fee
  • Internal Revenue Service Reporting Requirement (1099-S)
  • Transfer of Residential Rental Property
  • "Good Funds"
  • Recording Instruments that Contain a Social Security Number
  • Falsifying Title Insurance Documents
  • Uniform Real Property Electronic Recording Act

Chapter 9 Real Estate Trust Accounts

  • Introduction
  • Definition of "Trust Funds"
  • Sources of Trust Funds
  • Types of Trust Fund Payments
  • Difference Between "Client Funds" and "Trust Funds"
  • Trust Account Requirements
  • Handling Trust Deposits and Disbursements
  • Disbursements
  • Property Management Trust Funds
  • The Bookkeeping System
  • The Cash Journal
  • The Ledger
  • Account Reconciliation
  • Trial Balance
  • Sample Reconciliation and Trial Balance
  • Validation
  • Sample Account Reconciliation and Trial Balance
  • Comments on Sample Forms
  • Computerized Trust Accounting
  • Trust Account Problem Areas for the Broker
  • Who is Responsible for Handling Trust Account Funds?
  • Retaining Trust Account Records
  • A Review of the Legal Requirements for Trust Funds

Chapter 10 Contract Interpretation and Remedies

  • Introduction
  • Contract Interpretation
  • Interpreting the Contract Language: Rules of Construction
  • Ambiguous Provisions
  • Omitted Provisions
  • Contract Drafting Tips for Licensees
  • Contract Remedies
  • Specific Performance
  • Damages
  • Reformation
  • Rescission
  • Mutual Mistake
  • Election of Remedies
  • Interest, Attorneys Fees, and Costs

Chapter 11 Description of Real Estate

  • Importance of a Sufficient Description
  • Government Survey
  • Metes and Bounds Descriptions
  • Plats, Subdivisions, Condominiums, and Certified Survey Maps
  • Street Address
  • Reference to Appearances or Outside Facts
  • A Sufficient Description
  • The Source of Descriptions
  • Adverse Possession

Chapter 12 Deeds

  • Deeds: Elements
  • Deeds: Types
  • Standard Forms of Deeds
  • Executing a Deed in a Sales Transaction
  • Problems of Designating the Grantor in Deeds
  • Designating the Grantee
  • Other Problems in Preparing Deeds
  • Delivery of Deeds

Chapter 13 The Land Contract

  • The Land Contract in Real Estate Transactions
  • Land Contract Provisions
  • Difference Between Land Contract and Offer to Purchase
  • Comparing the Option and Land Contract
  • Comparing the Deed and Land Contract
  • Comparing the Lease and Land Contract
  • Comparing the Mortgage and Land Contract
  • Choosing Between the Land Contract and Mortgage
  • Complying with the Wisconsin Consumer Act
  • Transfer of the Buyer's Interest Under a Land Contract
  • Transfer of the Seller's Interest Under a Land Contract
  • The Standard Form of Land Contract
  • Completing and Executing the Land Contract

Chapter 14 Mortgages

  • Mortgages in Real Estate Transactions
  • The Mortgage Papers: The Note and the Mortgage
  • The Debtor‑Mortgagor's Equity of Redemption
  • Consequences of the Mortgagor's Equity of Redemption
  • Special Types of Mortgages
  • Common Mortgage Provisions
  • Selling Mortgaged Real Estate
  • Transfer of the Lender's Interest-Assignments of Mortgage
  • Filling in the Mortgage Form and Formalities of Execution
  • Mortgage Fraud
  • Predatory Lending
  • Subprime Mortgage Lending

Chapter 15 Title Designations: Ownership, Management, and Control

  • Interests in Real Estate
  • Ownership Interests
  • Rights to Possession of Real Estate
  • Nonpossessory Property Interests
  • Homestead
  • How Ownership is Held
  • Single Ownership
  • Unmarried Co-Owners: Rights and Duties of Tenants in Common and Joint Tenants
  • Tenancy in Common
  • Joint Tenancy
  • Marital Property Law
  • Marital Property Agreements
  • Trusts
  • Condominium and Cooperative Ownership
  • Time-Share Ownership
  • Ownership, Management, and Control
  • Designating Titles to Real Estate
  • Who Must Sign Instruments of Conveyance as Sellers or Grantors?
  • Unmarried Persons as Sellers or Grantors
  • Married Persons as Sellers or Grantors
  • How Should the Buyers or Grantees Take Title?
  • Unmarried Persons as Buyers or Grantees
  • Married Persons as Buyers or Grantees
  • Real Estate Transfers at Death

Chapter 16 Antitrust Law

  • Introduction
  • What is Antitrust Law?
  • Sherman Act
  • Federal Trade Commission Act
  • Sherman Act "Per Se" Violations
  • Price-Fixing
  • Group Boycotts
  • Tying Arrangements
  • Other Real Estate Industry Antitrust Issues
  • Antitrust Law Enforcement
  • Potential Risk Exposure

Chapter 17 Lead-Based Paint Issues

  • Lead-Based Paint Issues
  • Common Law Developments
  • State of Wisconsin Certification Requirements
  • 1999 Act 113-Wisconsin's Lead-Based Paint Immunity Bill
  • Federal Lead-Based Paint Disclosure Rules
  • Prerenovation Lead Information Rule
  • Other Federal Lead-Based Paint Regulations
  • Nonresidential Transactions

Chapter 18 Consumer Protection

  • Introduction
  • Real Estate Settlement Procedures Act (RESPA)
  • The Federal Truth‑in‑Lending Act and Regulation Z
  • Regulation Z: Credit Financing Advertising
  • Credit Reporting
  • Fair Debt Collection Practices Act
  • Debt Collection in Wisconsin Consumer Transactions
  • Wisconsin Consumer Act
  • Regulation of First Lien Residential Real Estate Loans-Wisconsin Statutes Chapter 428
  • Interest Rate Regulation
  • Buyer's Protections as to Quality and Suitability
  • Homeowner's Insurance Issues
  • Right to Cure Law; Disputes Related to Construction or Remodeling

Chapter 19 The Law Against Discrimination In Housing

  • Introduction
  • What Housing is Covered?
  • Who is Protected by Fair Housing Laws?
  • What is Prohibited?
  • The Wisconsin Equal Opportunity Law
  • Municipal and County Fair Housing Ordinances
  • Housing for Older Persons
  • Occupancy Standards
  • Advertising
  • Additional Protections for Persons with Disabilities
  • Americans with Disabilities Act-Public Accommodations, Commercial Facilities, and Private Entities That Offer Educational Courses
  • New Construction Accessibility Standards
  • Fair Housing Enforcement
  • Testing
  • Regulation of Real Estate Licensees
  • REALTOR® Code of Ethics

Chapter 20 Land-Use and Environmental Issues

  • The Planning Process in General
  • Private Planning by Restrictive Covenants and Easements
  • Comprehensive Public Planning and "Smart Growth" Law
  • Zoning
  • Zoning Authority: Local Governments
  • Zoning Concepts
  • Subdivision Regulations
  • Official Map
  • Highway Access and Land Division Restrictions
  • Shoreland Zoning
  • Floodplain Zoning
  • Wetlands
  • Redeveloping Contaminated Properties
  • Spill Law
  • Storage Tanks
  • Burial Sites and Historic Properties
  • Use-Value Assessments
  • Private Sanitary Systems; Comm 83
  • Construction Site Erosion Control and Storm Water Management

Chapter 21 Landlord-Tenant Law

  • Introduction
  • License Requirements
  • Rental Listings
  • Tenant Screening
  • Types of Rental Agreements
  • Leases Over One Year Must be in Writing
  • Recording Leases for More Than One Year
  • Required and Customary Rental Agreement Provisions
  • Signatures on Leases
  • Informal Rental Arrangements
  • Residential Rental Practices Rules, Chapter ATCP 134, Wisconsin Administrative Code
  • Rights and Duties Between Landlord and Tenant
  • Transfer of the Landlord's or Tenant's Interest
  • Termination of Tenancies
  • Content of Termination Notices
  • Manner of Giving Termination Notices
  • Curing the Default
  • Eviction Proceedings
  • Voluntary Termination by Agreement Prior to End of Term
  • Termination of Periodic Tenancies and Tenancies at Will
  • Landlord's Duty to Mitigate Damages
  • Rental Unit Energy Efficiency Requirements
  • Commercial and Farm Leases

PLUS OVER 25 FORMS AND A CONVENIENT COLLECTION OF REAL ESTATE STATUTES AND ADMINISTRATIVE RULES

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