Disclosing Defects with the Real Estate Condition Report (RECR)

Disclosing Defects with the Real Estate Condition Report (RECR)

Wisconsin law has left the dark ages of caveat emptor or also known as “let the buyer beware” in the sale of residential property. The harshness of caveat emptor has been replaced by the Real Estate Condition Report or “RECR.” Basically, the RECR requires sellers to disclose their awareness of defects. What should be a simple concept is made complex by legalistic definitions. For instance, a “defect” is defined as a “condition that would have a significant adverse effect on the value of the property; that significantly impairs the health or safety of future occupants of the property; or that if not repaired, removed or replaced would significantly shorten or adversely affect the expected normal life of the premises.” It is not hard to imagine a silver-tongued lawyer arguing that just about anything is a defect under this definition. Consider the following quote:

“Houses are amazingly complex repositories. What I found, to my great surprise, is that whatever happens in the world – whatever is discovered or created or bitterly fought over – eventually ends up, in one way or another, in your house. Wars, famines, the Industrial Revolution, the Enlightenment – they are all there in your sofas and chests of drawers, tucked into the folds of your curtains, in the downy softness of your pillows, in the paint on your walls and the water in your pipes.” ― Bill Bryson, At Home: A Short History of Private Life

If Bill Bryson is right in saying that the history of the world is found within the four corners of a home, is it futile to expect a seller of a residential home to disclose defects? Not quite. In reality, the RECR is a straightforward document requiring a homeowner to check “yes, no, or N/A” to knowledge of defects concerning elements of the house, such as the roofing. 

Blindly checking “no” to all knowledge of defects is foolhardy and may violate Wisconsin law. Notably, there is also a requirement that sellers amend their RECR if defects are discoverable after completion of the RECR but before an offer is accepted. These representations are legally binding and a buyer is entitled to rely on the RECR. Often, the RECR forms the basis for a lawsuit. Any doubt about a defect should be resolved in favor of disclosure.

 

Contingency Clauses in Real Estate Contracts

Contingency Clauses in Real Estate Contracts

If you have ever bought or sold real estate, you may be familiar with the contingency clauses contained in these agreements. These clauses offer the option to back out of a sale if certain events occur. The meaning and consequences of these contingencies can be confusing for first-time buyers or sellers. Even those with experience in the field sometimes struggle to grasp the implications of contingency clauses.

To understand real estate contingencies, it is necessary to have a basic understanding of the process in which real estate transactions are completed. When a potential buyer wishes to purchase a residential property, they will present the seller with a signed “Offer to Purchase.” In Wisconsin, the WB-11 form is the standardized contract used for residential real estate sales and serves as a base from which options are chosen. This Offer will contain all of the terms of the transaction and becomes a binding legal contract when signed by the seller. The Offer does not actually transfer the property but rather begins the process, which will culminate in a closing.  At the closing, the documents are signed and the legal title to the property is transferred. Between acceptance of the Offer and the closing, the parties can agree to change the terms using an amendment, but unless both sides agree on a change, the terms in the original signed Offer will control.

The Offer lays out a series of responsibilities and deadlines for each party. These responsibilities generally consist of providing documents, making inspections and coordinating mortgage financing and title insurance. If a party does not timely complete their duties under the Offer, they are in breach of the contract. Depending on the situation, this may allow the other party to retain earnest money, which is the deposit to the seller that represents the buyer’s good faith to purchase, sue for monetary damages, or sue for “specific performance,” meaning they will request a judge to order the breaching party to fulfill their obligations. Often, the legal costs of pursuing these remedies deter the non-breaching party from pursuing them, but the potential for such legal action makes it inadvisable to assume that if something goes wrong, or if you change your mind, you can just walk away from an accepted Offer.

Because key information is sometimes not known when an Offer is accepted, most contracts contain contingencies which state that if specific events occur, then a party has the option to walk away without being in breach. If a contingency is triggered, the party backing out of the deal is not breaking the contract because the contract itself states they would not have to go forward if that event occurred.

Although some types of contingencies benefit the Seller, generally, Sellers prefer Offers with fewer contingencies because contingencies create more opportunities for the deal to fall through, leaving them with the unsold property. Buyers typically want more contingencies as it gives them flexibility if, after the Offer is accepted, something happens that makes them no longer interested in purchasing the property. What contingencies are included can be an important part of negotiations prior to the acceptance of an Offer.

The WB-11 form contains many options for contingencies. Most are preceded by a box which is checked if that contingency is to apply. If the box is not checked, that contingency is not part of the Offer. Outside of the contingencies included as options in the WB-11, additional terms may be added which make the Offer contingent upon other circumstances. With proper drafting, an Offer can be made contingent upon almost anything.

There are too many possible contingencies to describe them all here, but some of the more common contingencies are described below:

Financing Contingency. This contingency is common when the Buyer requires a mortgage to be able to purchase the property. If the Buyer is unable to obtain a mortgage for a set amount and at a set interest rate, and the Seller is not willing to offer them financing on the same terms, then the Buyer can walk away from the deal without being in breach.

Closing of Buyer’s Other Property Contingency: This contingency allows a Buyer who is in the process of selling another property, usually their existing home, to back-out of a deal if the sale of their old property does not close by a certain date. This can be very important to a Buyer; without it they may end up being forced to either breach the contract or own two homes.  Be sure to carefully think through the dates and deadlines between the two transactions when using this contingency. Even if you already have a binding Offer on your old home, consider this contingency in case the deal falls through.

Inspection Contingency: This contingency allows the Buyer to have an inspector examine the property. If they discover a “defect,” as defined by the WB-11, the Buyer may be able to back out of the deal. The seller is typically given the right to “cure” the defect to prevent the sale from falling through. For example, if this contingency is included and an inspector identifies issues with the electrical wiring, the Buyer would have the right to walk away unless the Seller is willing to pay for the issue to be corrected.

Appraisal Contingency:  Under this contingency, the Buyer may hire an appraiser to determine the value of the property. If the appraisal is less than the purchase price, the buyer can back out of the Offer. Appraisals are expensive and take time, so consider whether it is worth the expense and whether there is enough time between acceptance and closing to receive the appraiser’s report.

If you have questions about what contingencies are appropriate for your real estate transaction, how contingencies in an existing sale may interact, or how to draft custom contingency clauses, you should consult with a real estate attorney.

 

In Spite of the Law

In Spite of the Law

The law, to borrow a quote from Winston Churchill, “is a riddle, wrapped in a mystery, inside an enigma; but perhaps there is a key.” That “key” is often found in the Wisconsin Statutes which is affectionally referred to as the book of surprises.  Hence, when faced with the proverbial question of whether “fences make good neighbors” it made sense to scour the Wisconsin Statutes for an answer. Behold!  Such a timely question has an answer and it is: not necessarily. Wisconsin law prohibits the construction of spite fences. In the words of the legislature:

“Any fence, hedge or other structure in the nature of a fence unnecessarily exceeding 6 feet in height, maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance. However, nothing herein contained shall limit the right of a municipality to forbid the erection of a fence less than 6 feet in height.”

Spite fences were not always held in such low esteem in this great State. Circa 1900, from the quaint village of Glenbeulah, Wisconsin comes the case of Metzger v. Hochrein. The Court described Metzger’s property as “surrounded by made lawns and yards, making an attractive and valuable home.” Standing accused of erecting a spite fence, Hochrein set “rough” tamarack posts, from eight to sixteen feet high along the border between the properties. Making things worse, the Court described that between these posts was a “tight board fence of rough, old, unsightly, and partly decayed lumber from an old ice house.” Ignoring the adage to love thy neighbor, the Wisconsin Supreme Court dismissed the case. In language that seems whimsical today, the Court endorsed the right to annoy one’s neighbor:

“This is one of the many cases that may arise where the doctrine of personal liberty and personal dominion of one over his own property enables him to do things to the annoyance of others, not causing actual, material physical discomfort to them, for which there is no punishment, except loss of that respect which every right-thinking man desires from his neighbors, and the possession of which is a source of daily enjoyment. If one is so constituted as not to be susceptible to those feelings which a reasonably well-balanced man is supposed to possess, and is so constituted as to obtain more pleasure out of needlessly annoying others than by securing and retaining their respect as a manly member of society, his sovereign right in his own property, to use it as he may so far as that use does not physically extend outside his boundaries to the detriment of others, may be so exercised as to violate the moral obligations which every member of society owes to his neighbors, without any penalty being visited upon him for his misconduct, of which he can be made conscious.”

However, the unbridled ability to irritate neighbors did not last long. In 1903, an early version of the spite fence statute was passed in reaction to the Supreme Court’s decision in Metzger v. Hochrein. Now, some modern examples help us understand the mash-up of words contained in the spite fence statute. For an example from Utah, would a “Redneck Stonehenge” consisting of three old cars upright in the ground, erected after a neighborly dispute constitute a spite fence? The answer in a word – yes!  Closer to home, a Wisconsin appeals court in the case of Apple Hills Farms v. Price found that an “exposed thirty-two feet long, twelve feet high bare concrete wall” near a property was a spite fence. The facts of the Apple Hills Farms’ case provide a textbook definition of spite. Price, the erector of the wall, told the contractor building the wall that he wanted the wall “ugly” to devalue his neighbor’s property. Surely, it did not help his case that he sprayed grass killer on his neighbor’s lawn to spell “A-hole.” Price’s spite bit him back in the end when the court ordered that he pay his neighbor $150,000.

Upon reflection, the law may not be able to answer the question of whether fences make good neighbors, but it shows that at times, fences certainly make spiteful neighbors. To close, Robert Frost’s poem “Mending Wall” fittingly contains the following contemplative prose: “Before I built a wall I’d ask to know what I was walling in or walling out, and to whom I was like to give offense.”

 

What Makes Land Agricultural for Taxes in Wisconsin?

What Makes Land Agricultural for Taxes in Wisconsin?

Ever wonder what it takes for land to be considered and taxed as “agricultural land”? In State ex rel. Peter Odgen Family Trust of 2008 v. Bd. of Review, 2019 WI 23, the Wisconsin Supreme Court recently held that a “business purpose is not required in order for land to be classified as ‘agricultural land’ for property tax purposes.” This is an important clarification as the Town of Delafield Assessor had revised an assessment of land owned by the Peter Odgen Family Trust of 2008 (“Odgen Trust”) from “agricultural land” and “agricultural forest land” to “residential” resulting in a difference in assessed value of over $850,000. Needless to say, the Odgen Trust faced a highly increased property tax burden which led to the Odgen Trust filing a lawsuit in an effort to reverse the classification.

The Wisconsin Supreme Court carefully reviewed the Wisconsin laws that define “agricultural land” and “agricultural use.” When courts review statutes, if the statutory language is clear, then no further interpretation is necessary. The Court determined that the statutes were clear. Under Wis. Stat. § 70.32(2)(c)1g. “agricultural land” means “land, exclusive of buildings and improvements and the land necessary for their location and convenience, that is devoted primarily to agricultural use.” The Court reviewed several statutes and tax code regulations regarding the definition of “agricultural use.” In short, “agricultural use” plainly includes the growing of Christmas trees,[1] apples,[2] and hay,[3] all of which the Odgen Trust was growing on its property.[4]

What none of the statutes or tax code regulations require is the marketing, selling, or profiting from growing crops.[5] All that is required under the statutes and tax code regulations is the growing of the relevant crops.[6] “A business purpose is not required in order for land to be classified as ‘agricultural land’ for property tax purposes.”[7] To require a business purpose, the court would have to “impermissibly insert such a limitation into a clear and unambiguous set of statutory provisions and administrative rules.”[8]

Presently, if you are a hobby farmer and your land is zoned as “agricultural land” or as “agricultural forest land,” you are likely meeting the definition of “agricultural use.” Moreover, the local assessor cannot require that you sell crops in order to keep such assessment classification. In the simplest terms, whether or not you are producing crops for sale, growing crops or woody products will qualify for an agricultural classification. However, what we should be keeping an eye out for is any legislative changes. If the Wisconsin Legislature is unhappy with this result, the Legislature could choose to amend the statutes to require a business purpose. Municipalities could view this loss of tax revenue significant and could request the Legislature to amend the statutes. While we cannot predict the future, the Legislature’s role is to make and amend laws. The results of this case could be something that the Legislature feels is important to address to keep tax revenues as high as possible since the municipalities rely on tax revenues for their budgets. Understanding what qualifies as “agricultural land” or “agricultural forest land” can be important when an alternative classification can create a significantly higher property tax burden.

[1] Wis. Admin. Code DOR § Tax 18.05(1)(c).
[2] Wis. Admin. Code DOR § Tax 18.05(1)(a); Office of Mgmt. & Budget, Exec. Office of the President, North American Industry Classification System (NAICS), United States, 1997, at 86, 90, https://www.census.gov/eos/www/naics/2017NAICS/2017_NAICS_Manual.pdf
[3] Id.
[4] State ex rel. Peter Odgen Family Trust of 2008, 2019 WI at ¶¶ 10-11.
[5] Id. at ¶ 31.
[6] Id.
[7] Id. at ¶ 32.
[8] Id.

 

Private Roads, Joint Driveways, and Easements

Private Roads, Joint Driveways, and Easements

Many properties in Wisconsin have some form of shared access. It can be as simple as a portion of the driveway crossing the neighbor’s property to more complicated scenarios where an access road crosses multiple properties and provides access to numerous lots. Sometimes a “private road” may have been created when the land was subdivided.

As statutory and zoning requirements have become more sophisticated (and developers more aware), it is now more common to see properly-drafted legal documents describing road access rights and obligations at the time new lots are created. However, this is certainly not always the case. In addition, there are many joint driveways, access roads, and private roads that were created when the statutory and zoning requirements were not as stringent.

Where neighbors are friendly and know each other well, informal arrangements regarding shared access often work for years without problems. Of course, if an owner dies or moves away, the dynamics may change. However, even where the parties continue to get along, the lack of a formal arrangement may become an issue if an owner desires to obtain a mortgage on their land. Most banks that offer long term, fixed-rate financing sell their mortgages in the secondary market. This is true even if the bank continues to service the mortgage. For the bank to be able to sell mortgages, they must comply with certain requirements. Those requirements can differ depending on whether the bank uses organizations created by Congress to buy mortgages such as Fannie Mae and Freddie Mac, or some other source to access the secondary mortgage market.

Why does all this financial mumbo-jumbo matter for shared access? Fannie Mae requires a legally enforceable agreement or covenant for the maintenance of any privately owned and maintained street that addresses: (i) responsibility for payment, (ii) default remedies if someone does not comply with his or her obligations, and (iii) an effective term of the agreement, which often is perpetual and binding on future owners. Without a recorded agreement, the bank will not provide financing. This type of trouble is difficult enough if a current owner is trying to refinance but can be even more challenging for a property owner trying to sell a property. In most cases, the parties to a transaction will not find out the potential buyer is unable to secure financing until well into the buying process.

Beyond financing, having a well-drafted agreement in place can also provide owners with peace of mind that their property can be transferred or sold as part of their estate without undue complications. If you own a property with shared access or are thinking about buying a property with shared access, call one of our real estate attorneys to find out what you can do to protect yourself and your investment.

 

Vacation Rentals and Restrictive Covenants

Vacation Rentals and Restrictive Covenants

The vacation rental market has exploded in recent years due to the popularity of online sites such as Airbnb, VRBO, and HomeAway.  While these sites have created a booming marketplace for homeowners and renters alike, they have also created a myriad of legal and governmental quagmires.  One of these complex issues is restrictive covenants and land use.

A restrictive covenant is a type of agreement that limits permissible use of land.  Generally, a restrictive covenant agreement is recorded so that potential purchasers of real estate are aware that there are restrictions on what they, as landowners, can or cannot do with the real estate.

In a recent Wisconsin Supreme Court decision, Forshee v. Neuschwander, 2018 WI 62, restrictive covenants that prohibited “commercial activity” were held to be ambiguous and unenforceable.

In the Forshee case, the issue was that the landowners were renting their property to vacationers. The question that the Wisconsin Supreme Court analyzed here was whether the prohibition against “commercial activity” included short-term and long-term rentals. Wisconsin law requires that restrictive covenants must be expressed in clear, unambiguous, and peremptory terms in order to be enforceable. The Court held that the phrase “commercial activity” was susceptible to more than one reasonable interpretation and, therefore, ambiguous.  The Court ultimately decided that prohibition against commercial activity did not preclude either short-term or long-term rentals and the landowners could continue engaging in such activities.

The Forshee case could be setting a larger stage for landowners to have the ability to void any restrictive covenant that is ambiguous. If you own land that has restrictive covenants, you might want to closely examine those covenants as not all of them may be enforceable against you.

For developers, it is in your best interest to review those restrictive covenants again and make sure they are clear and convey exactly what you intend. At minimum, you should review those restrictive covenants that are most important to the development.  Having restrictive covenants drafted right the first time is crucial because subsequent landowners will be bound to the covenants as originally drafted. If the language in the covenants does not clearly convey what the restriction is, that restriction will likely be determined by a court to be unenforceable.

 

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