Wisconsin Special Warranty Deed Form

What is a Wisconsin Special Warranty Deed Form?

A Wisconsin special warranty deed is a legal instrument that transfers real estate from the current owner—or grantor—to a new owner—the grantee—with a limited warranty of title.¹ Warranty of title is essentially a guaranty the current owner gives to the new owner regarding the title to transferred real estate.²

When warranting the title to Wisconsin real estate, the current owner promises that:

• The current owner holds good title to the real estate and has the power to transfer title.
• The real estate’s title is not subject to undisclosed liens, mortgages, or other title defects.
• The current owner will defend the transferred property’s title against any third-party claims.³

A Wisconsin special warranty deed’s warranty is limited because it only extends to the period during which the current owner held title to the property. The warranty covers title defects and third-party claims derived from events that occurred while the current owner held title. A special warranty deed’s guaranty does not cover title defects and third-party claims derived from events earlier in the property’s history.

Wisconsin’s real estate code expressly recognizes quitclaim deeds and warranty deeds.⁴ Wisconsin special warranty deeds are derived from common law, statutory authorization of warranty deeds, and the parties’ recognized right to contractually modify terms of conveyance within a deed.⁵ A special warranty deed must clearly describe the terms of the current owner’s warranty. Wisconsin statutes do not define the limited scope of a special warranty deed’s warranty. Wisconsin courts will not interpret a special warranty deed to include any covenant or warranty not expressly written in the deed.⁶

Other Names for a Wisconsin Special Warranty Deed Form

Deeds conveying real estate with limited warranty of title go by a variety of names. Wisconsin and multiple other states call them special warranty deeds.⁷ Other states use the terms limited warranty deed, grant deed, and covenant deed.⁸

Special warranty deeds serve the same basic function in states where they are recognized. Individual states, though, can differ in the details of how special warranty deeds are interpreted, and there are often significant differences in the requirements for creating a special warranty deed. A Wisconsin special warranty deed must be tailored to Wisconsin law, as a deed designed for use in another state may be ineffective in Wisconsin.

How do Wisconsin Special Warranty Deed Forms Relate to Other Forms of Deeds?

Special warranty deeds represent a split-the-difference, middle-ground approach to allocating the risk associated with unknown title defects—with both parties bearing some risk. The current owner is responsible for title defects that arose while the current owner held title. The new owner assumes the risk of title defects outside of the warranty. Potential title defects might include an unknown lien, a boundary dispute raised by a third party, or an unclear chain of title caused by a failed conveyance earlier in the property’s history.⁹

A special warranty deed’s precise risk allocation—that is, the percentage of risk each party bears—depends on the individual circumstances. If the current owner held title for only a month or two, the new owner assumes a greater share of the risk. If the current owner owned the property for 20 years before executing the deed, the current owner’s risk exposure is greater.

Wisconsin recognizes two other deed forms that—rather than split the risk between the parties—place the risk of title defects solely on one party or the other.

• Wisconsin General Warranty Deed Form. A Wisconsin general warranty deed—or just warranty deed—conveys real estate with complete warranty of title.¹⁰ An owner who provides a general warranty bears the risk of undisclosed title defects regardless of when a defect arose. The current owner also promises to defend the property’s title if a valid claim later emerges.
• Wisconsin Quitclaim Deed Form. A Wisconsin quitclaim deed conveys real estate with no warranty. The current owner does not guaranty a clear title or even that the transferred title is legally valid.¹¹ Quitclaim deeds transfer as-is whatever interest the current owner holds—if any. The new owner bears all risk of title defects, and the current owner has no obligation to defend the property’s title. Quitclaim is sometimes written quit claim, and quitclaim deeds are sometimes called release deeds.

Either party to a deed—or a third party with an interest in the real estate—can purchase title insurance to protect against the risk of unknown problems with a property’s title. A title insurance policy is the insurer’s contractual promise—given in exchange for a premium—to defray the insured person’s financial loss resulting from a covered title defect.¹² A title insurer also arranges for legal defense if a third party asserts a claim against the property. Title insurers typically require a professional title examination before issuing a policy—reducing the risk of unknown risks.

Wisconsin Special Warranty Deed Forms and Other Wisconsin Deeds Related to Estate Planning

The three Wisconsin deed forms described above—special warranty deeds, warranty deeds, and quitclaim deeds—are the deed forms most commonly used to transfer Wisconsin real estate to a new owner. Wisconsin also recognizes several specialized deed forms used for specific purposes or in particular settings. The below deed forms are common in the context of estate planning and administration.

• Wisconsin Life Estate Deed Form. A life estate deed form conveys or reserves to the current owner a lifetime interest—called a life tenancy—in real estate.¹³ Life estate deeds also grant a remainder interest to a future owner who takes title when the life tenancy concludes—i.e., when the life tenant dies. A Wisconsin life estate deed can be a special warranty, warranty, or quitclaim deed—depending on the warranty of title a deed offers. A disadvantage of life estate deeds is that the remainder interest limits the life tenant’s rights in the real estate during life.
• Wisconsin Transfer on Death Deed Form. A transfer-on-death deed form—also called TOD deed or beneficiary deed—designates a beneficiary in whom title to real estate vests when the current owner dies.¹⁴ A TOD deed’s beneficiary receives no present interest in the property, and the deed does not affect the owner’s rights during the owner’s life.¹⁵ TOD deeds are a popular estate-planning tool because they allow real estate to bypass the owner’s probate estate.
• Wisconsin Personal Representative’s Deed Form. A personal representative’s deed form is a deed that conveys real estate from a deceased owner’s estate to a new owner.¹⁶ The estate’s court-appointed personal representative executes the deed as part of the probate administration process. Wisconsin’s probate laws restrict the power of a personal representative to provide a warranty, so a Wisconsin personal representative’s deed cannot also be a special warranty deed.¹⁷

Common Uses of Wisconsin Special Warranty Deed Forms

Wisconsin landowners commonly use special warranty deeds to transfer real estate sold for business purposes—such as commercial properties or apartment buildings. A special warranty deed gives a commercial buyer some assurance that the seller believes the deed transfers a clear title. A seller may be confident no title problems arose during the seller’s ownership period but want to avoid the extended risk of unknown defects earlier in the chain of title. Either or both parties to this kind of commercial transaction could purchase title insurance to cover their share of the risk.

Single-family home sales—by comparison—almost always involve general warranty deeds—particularly if a purchase is financed. Most homebuyers cannot afford any chance of purchasing or financing a home with an unclear title. Mortgage lenders customarily require that a deed used to convey mortgaged real estate include a general warranty.

Special warranty deeds are customizable for out-of-the-ordinary transactions. A seller delivering a deed to a purchaser who has already occupied the real estate for an extended period—for example—might want to carve out the buyer’s occupation period from the deed’s warranty.

Fiduciaries executing deeds on the title-holder’s behalf sometimes use special warranty deeds. A fiduciary’s authorization might prevent issuance of a general warranty, or the fiduciary may not be comfortable providing a general warranty covering circumstances outside the fiduciary’s personal knowledge. Any of these fiduciaries might use a special warranty deed to transfer Wisconsin real estate:

• A trustee transferring real estate owned by a trust;¹⁸
• An officer of a corporation or nonprofit association transferring entity-owned real estate;¹⁹
• A member or manager of an LLC transferring real estate owned by the company;²⁰
• A partner transferring real estate owned by a general partnership or LLP;²¹ or
• A court-appointed guardian of the estate transferring real estate owned by the represented minor.²²

In other states, personal representatives of deceased individuals’ estates sometimes use special warranty deeds to convey estate property. Wisconsin law precludes the use of special warranty deeds by personal representatives.²³

How to Create a Wisconsin Special Warranty Deed

Wisconsin does not offer any statutory deed form for special warranty deeds. Wisconsin special warranty deeds are derived primarily from common law and the parties’ right to modify the terms of conveyance contractually.²⁴ Wisconsin law interprets a special warranty deed as essentially a contract between the parties to the deed.²⁵ A deed’s language must therefore unambiguously express the parties’ agreed terms of conveyance—including the warranty provided by the current owner.

A deed that does not express the current owner’s intent to warrant the property’s title provides no warranty.²⁶ A deed declaring the current owner’s intent to warrant the title—but with no clear limitation on the extent of the warranty—will be treated as a general warranty deed.²⁷

Along with clearly defining the terms of conveyance and the scope of the warranty, a special warranty deed must satisfy Wisconsin’s formal requisites for deeds.²⁸ Wisconsin’s requirements include

• The parties’ names;²⁹
• A legal description of the transferred real estate;³⁰
• Identification of the individual who prepared the deed;³¹ and
• The terms and conditions of the transfer.³²

Wisconsin law also mandates strict formatting requirements for deeds. A Wisconsin deed must use the correct paper, page size, ink color, and margins—among other things.³³ The register of deeds may reject a deed that is not formatted properly or omits required information.³⁴

A Wisconsin special warranty deed form must be compliant with all relevant elements of Wisconsin law. Because Wisconsin has unique deed standards, a deed form created for another state may be invalid in Wisconsin. A noncompliant deed—or a deed that inaccurately reflects the parties’ agreed terms—can lead to increased cost, legal exposure, and future problems with a property’s title.

1. Wis. Stat. §706.01(6).
2. Lucareli v. Lucareli, 614 NW 2d 60 (Wis. 2000).
3. Wis. Stat. §706.10(5).
4. Wis. Stat. §706.10(4) and (5).
5. Wis. Stat. §706.10(1) and (5).
6. Wis. Stat. §706.10(6).
7. See, e.g., Pollnow v. Dept. of Natural Resources, 276 N.W.2d 738 (Wis. 1979).
8. See, e.g., Ohio Rev. Code §5302.07; Cal. Civ. Code §1092.
9. See Badger Mining Corp. v. First Am. Title Ins. Co., No. 29-cv-840-wmc (W.D. Wis. 2021).
10. Wis. Stat. §706.10(5).
11. Wis. Stat. §706.10(4).
12. See Badger Mining Corp. v. First Am. Title Ins. Co., No. 29-cv-840-wmc (W.D. Wis. 2021).
13. See Wis. Stat. §700.02(3).
14. Wis. Stat. §705.15(4).
15. Wis. Stat. §705.15(3).
16. See Wis. Stat. §860.01.
17. See Wis. Stat. §860.07.
18. See Wis. Stat. §701.0816(2) and (25).
19. See Wis. Stat. §706.03(2); Wis. Stat. §706.03(3m); Wis. Stat. §184.05(1).
20. See Wis. Stat. §183.0301; Wis. Stat. §183.0702.
21. See Wis. Stat. §178.0301; Wis. Stat. § 179.0402.
22. Wis. Stat. §54.20(3)(g).
23. Wis. Stat. §860.07.
24. Wis. Stat. §706.10(1) and (5).
25. See Schorsch v. Blader, 563 NW 2d 538 (Wis. App. 1997).
26. Wis. Stat. §706.10(6).
27. Wis. Stat. §706.10(5).
28. Wis. Stat. §706.02.
29. Wis. Stat. §706.02(1)(a).
30. Wis. Stat. §706.02(1)(b).
31. Wis. Stat. §59.43(5)(a).
32. Wis. Stat. §706.02(1)(c).
33. Wis. Stat. §59.43(2m).
34. Wis. Stat. §59.43(2m)(a) and (b).