Section 706.10. Forms, construction.

 

(1)  The several terms and forms of conveyance authorized by law or in common use in this state on July 1, 1971, shall have the same operation and effect under this chapter as formerly, except as this chapter may expressly provide to the contrary; but this section shall not preclude the adoption or use of other, different or more concise forms which conform to the requirements of this chapter.

(2)  No conveyance shall be void for the reason that at the time of delivery thereof such lands are in actual possession of a person claiming under title adverse to the grantor.

(3)  In conveyances of lands words of inheritance shall not be necessary to create or convey a fee, and every conveyance shall pass all the estate or interest of the grantor unless a different intent shall appear expressly or by necessary implication in the terms of such conveyance.

(4)  A quitclaim deed shall pass all of the interest in or appurtenant to the land described which the grantor could lawfully convey, but shall not warrant or imply the existence, quantity or quality of any such interest.

(5)  A conveyance by which the grantor contracts to warrant the land or its title shall be construed according to its terms, under rules of law for construction of contracts. A conveyance by which the grantor warrants the land or its title shall be construed, except as the terms of the conveyance may otherwise provide, to include covenants, for the benefit of the grantee, the grantee's heirs, successors and assigns, that the grantor at the time of conveyance is lawfully seized of the land; has good right to convey the same land or its title; that the same land or its title is free from all encumbrance; and that the grantor, the grantor's heirs and personal representatives will forever guarantee and defend the title and quiet possession of the land against all lawful claims whatever originating prior to the conveyance, except as the claims may arise out of open and notorious rights of easement, or out of public building, zoning or use restrictions.

(6)  Except as provided in sub. (7) and except as otherwise provided by law, no warranty or covenant shall be implied in any conveyance, whether or not such conveyance contains special warranties or covenants. No mortgage shall be construed as implying a covenant for the payment of the sum thereby intended to be secured, and when there shall be no express covenant for such payment contained in the mortgage and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee, shall be confined to the lands mentioned in the mortgage.

(7)  In the absence of an express or necessarily implied provision to the contrary, a conveyance evidencing a transaction under which the grantor undertakes to improve the premises so as to equip them for grantee's specified use and occupancy, or to procure such improvement under grantor's direction or control, shall imply a covenant that such improvement shall be performed in a workmanlike manner, and shall be reasonably adequate to equip the premises for such use and occupancy.

1973 c. 243 ; 1979 c. 175 ; 1993 a. 486 . Sub. (5) confirms that the rules of contract construction are to be used in interpreting the covenants of a deed. The measure of damages for breach of a covenant is the common law measure of damages for breach of warranty of title. Schorsch v. Blader, 209 Wis. 2d 401 , 563 N.W.2d 538 (Ct. App. 1997), 96-1220 . A warranty deed grants a present fee simple interest. A purported reservation of a power of appointment in a warranty deed is ineffective. Powers may be reserved and lesser interests granted, but not by warranty deed. Lucareli v. Lucareli, 2000 WI App 133 , 237 Wis. 2d 487 , 614 N.W.2d 60 , 99-1679 . Sub. (3) applies to easements. Borek Cranberry Marsh v. Jackson County, 2010 WI 95 , 328 Wis. 2d 613 , 785 N.W.2d 615 , 08-1144 . A necessary implication under sub. (3) is one that is so clear as to be express; it is a required implication. The words "heirs and assigns," or any similar language, are unnecessary under sub. (3) to indicate a transferable interest. As a matter of law, "Grantee" has the exact same meaning as "Grantee and his heirs and assigns" unless another meaning is expressly stated or implied. Therefore, "heirs and assigns" need not be construed as having any legal effect and the use of the term in a grant of water flowage rights and not in a grant of sand removal rights in the same deed did not create a necessary implication that the sand rights were non-transferable. Borek Cranberry Marsh v. Jackson County, 2010 WI 95 , 328 Wis. 2d 613 , 785 N.W.2d 615 , 08-1144 . Performance in a "workmanlike manner" under sub. (7) requires a builder to perform work with the care and skill and provide suitable materials as contractors of reasonable prudence, skill, and judgment in similar construction would. Riverfront Lofts Condominium Owners Association v. Milwaukee/Riverfront Properties Limited Partnership, 236 F. Supp. 2d 918 . For the premises not to be "reasonably adequate for their intended use and occupancy" under sub. (7) a showing of negligence is not necessary. The defect must be fundamental to the habitability of the building. A defendant must meet a high standard to establish a disclaimer of the protections of sub. (7). Riverfront Lofts Condominium Owners Association v. Milwaukee/Riverfront Properties Limited Partnership, 236 F. Supp. 2d 918 . Builder-vendor liability for construction defects in houses. Kirschnik, 55 MLR 369. Duty to disclose limited to commercial vendors. 64 MLR 547 (1981).