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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 444
September 28, 2023 - Introduced by Representatives NOVAK, HAYWOOD, ALLEN,
ARMSTRONG, BINSFELD, C. ANDERSON, CABRERA, CONLEY, DITTRICH, DONOVAN,
EMERSON, GOEBEN, GOYKE, GUSTAFSON, JACOBSON, KRUG, MURPHY, MYERS,
O'CONNOR, OHNSTAD, ORTIZ-VELEZ, PALMERI, SNODGRASS, SPIROS, STUBBS,
SUBECK, VINING, MURSAU, DRAKE and CLANCY, cosponsored by Senators
BALLWEG, L. JOHNSON, CARPENTER, JACQUE, LARSON, ROYS, SPREITZER and
TAYLOR. Referred to Committee on Housing and Real Estate.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to amend 59.43 (1c) (intro.) and 706.05 (1); and to create 59.43 (1k),
59.43 (9) (d), 710.25 and 895.12 of the statutes; relating to: declaring
discriminatory restrictions in instruments that affect real property void and
unenforceable and allowing an owner of real property to discharge and release
such a discriminatory restriction.
Analysis by the Legislative Reference Bureau
This bill provides that a restriction, covenant, or condition that prohibits or
restricts the ownership, transfer, encumbrance, rental, occupancy, or use of real
property on the basis of being a member of a protected class, as defined in the open
housing law, (discriminatory restriction) and that is contained in a deed or other
instrument affecting real property is void and unenforceable. Under current law, it
is a violation of the open housing law to discriminate in housing, with limited
exceptions, on the basis of sex; race; color; sexual orientation; disability; religion;
national origin; marital status; family status; status as a victim of domestic abuse,
sexual assault, or stalking; lawful source of income; age; or ancestry.
The bill also provides that no person may file or record a deed or other
instrument that contains a discriminatory restriction with a register of deeds. If a
person presents a deed or other instrument that contains a discriminatory
restriction to a register of deeds for filing or recording, the register of deeds may reject
the deed or instrument, or, if the register of deeds chooses to file or record the deed
or instrument, the register of deeds may obscure the discriminatory restriction
before filing or recording the deed or instrument.
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The bill provides that a person that drafts a deed or other instrument affecting
real property may not include a discriminatory restriction in the deed or instrument.
Under the bill, if a person violates that prohibition, a grantee or other beneficiary of
the deed or instrument may bring a civil action for injunctive relief against the
person, and, if the grantee or beneficiary prevails, the grantee or beneficiary is
entitled to collect the costs of the action, including reasonable attorney fees.
Under the bill, an owner of real property that is affected by a deed or other
instrument that contains a discriminatory restriction may record with the register
of deeds a certification to discharge and release the discriminatory restriction from
the owner's real property. The bill creates a statutory certification form an owner
may use for that purpose and requires the Department of Administration to provide
copies of the form to the public by posting the form on DOA's website.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 59.43 (1c) (intro.) of the statutes is amended to read:
59.43 (1c) REGISTER OF DEEDS; DUTIES. (intro.) Subject to sub. subs. (1g) to (1m),
the register of deeds shall:
SECTION 2. 59.43 (1k) of the statutes is created to read:
59.43 (1k) AUTHORITY TO REJECT INSTRUMENTS WITH DISCRIMINATORY
RESTRICTIONS. If a register of deeds is presented with an instrument for recording or
filing that contains a discriminatory restriction, as defined in s. 710.25 (1), the
register of deeds may return the instrument unrecorded or unfiled or may, prior to
recording or filing the instrument, obscure the discriminatory restriction such that
the discriminatory restriction is not discernible on the instrument.
SECTION 3. 59.43 (9) (d) of the statutes is created to read:
59.43 (9) (d) With regard to certifications to discharge and release
discriminatory restrictions under s. 710.25 (5) (a) related to previously filed or
recorded documents, the register of deeds shall, if possible, include on the previously
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filed or recorded documents a notation of the document number of the certification,
the date when the certification is filed or recorded, and, if the certification is assigned
a volume and page number, the volume and page where the certification is filed or
recorded.
SECTION 4. 706.05 (1) of the statutes is amended to read:
706.05 (1) Subject to s. 59.43 (1g) to (1m) and (2m), every conveyance, and every
other instrument which that affects title to land in this state, shall be entitled to
record in the office of the register of deeds of each county in which land affected
thereby may lie.
SECTION 5. 710.25 of the statutes is created to read:
710.25 Discriminatory restrictions prohibited. (1) In this section,
“discriminatory restriction” means a restriction, covenant, or condition that
prohibits or restricts the ownership, transfer, encumbrance, rental, occupancy, or use
of real property on the basis of being a member of a protected class, as defined in s.
106.50 (1m) (nm). “Discriminatory restriction” does not include a restriction,
covenant, or condition that prohibits or restricts the ownership, transfer,
encumbrance, rental, occupancy, or use of real property on a basis that is allowed
under s. 106.50 (5m) (a) to (f) or 42 USC 3607.
(2) A discriminatory restriction contained in a deed or other instrument
affecting real property is void and unenforceable.
(3) No person may file or record with, or present for filing or recording to, a
register of deeds a deed or other instrument affecting real property that contains a
discriminatory restriction.
(4) A person that drafts a deed or other instrument affecting real property may
not include a discriminatory restriction in the deed or instrument.
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(5) (a) If real property is affected by a deed or other instrument that contains
a discriminatory restriction, an owner of the real property may discharge and release
the discriminatory restriction from the owner's real property by recording a
certification to discharge and release the discriminatory restriction. Subject to s.
59.43 (2m), the certification is entitled to record in the office of the register of deeds
in the county in which the owner's real property is located if the certification includes
all of the following:
1. The signature of the owner.
2. An acknowledgement or authentication in accordance with s. 706.06 or ch.
140.
3. The full legal description, as defined in s. 706.01 (7r), of the real property to
which the certification relates.
4. The title of the deed or instrument that contains the discriminatory
restriction, the document number of the deed or instrument, and, if given on the deed
or instrument, the volume and page where the deed or instrument is filed or
recorded.
(b) An owner of real property may record a single certification under par. (a)
to discharge and release discriminatory restrictions from multiple deeds and
instruments that affect the real property. The certification shall include the
information specified under par. (a) 4. for every deed or instrument to which the
certification applies.
(c) An owner of real property may make the certification under par. (a) in
substantially the following form:
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SECTION 5
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DISCHARGE AND RELEASE
OF DISCRIMINATORY RESTRICTION
AFFECTING REAL PROPERTY
Pursuant to section 710.25 of the Wisconsin statutes, a restriction, covenant,
or condition that prohibits or restricts the ownership, transfer, encumbrance, rental,
occupancy, or use of real property in this state on the basis of membership in a
protected class, as defined in the Wisconsin statutes, contained in a deed or other
instrument affecting real property is void and unenforceable. Pursuant to section
710.25 of the Wisconsin statutes, any owner of real property may record this form to
discharge and release such a discriminatory restriction from the owner's real
property.
DISCHARGE AND RELEASE BY OWNER
I, .... (name of owner), certify all of the following:
That I own the following described real property located in .... County,
Wisconsin:
.... (property description)
That the real property is affected by an instrument titled .... and recorded on
.... (date), in the Office of the Register of Deeds for .... County, Wisconsin, in volume
...., at page ...., as document number ....
[Repeat for each instrument to which the form applies.]
That the instrument(s) (contains) (contain) one or more discriminatory
restrictions that are void and unenforceable under section 710.25 of the Wisconsin
statutes and the Wisconsin and U.S. Constitutions.
That, pursuant to section 710.25 of the Wisconsin statutes, the discriminatory
restrictions are hereby discharged and released from the real property, and the
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remainder of the instrument(s) (continues) (continue) in full force and effect with
respect to the real property and shall be construed as if the discriminatory
restrictions are not contained therein.
OWNER'S CERTIFICA TION
The undersigned certifies that the information stated in this instrument is true
and correct to the best of my knowledge, information, and belief. The undersigned
makes this instrument for the purpose of discharging and releasing one or more
discriminatory restrictions affecting my real property that are void and
unenforceable.
Signed ....
Dated ....
ACKNOWLEDGEMENT
State of ....
County of ....
Signed and affirmed before me on .... (date), by .... (name of owner).
Signature of notary ....
(Seal, if any, of notary)
Printed name ....
My commission expires: ....
This instrument was drafted by: ....
(d) The department of administration shall prepare and provide copies of the
form under par. (c) to the public by posting the form on the department's website.
SECTION 6. 895.12 of the statutes is created to read:
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895.12 Discriminatory restrictions in real property instruments;
injunctive relief. (1) In this section, “discriminatory restriction” has the meaning
given in s. 710.25 (1).
(2) If a person that drafts a deed or other instrument affecting real property
includes a discriminatory restriction in the deed or instrument in violation of s.
710.25 (4), a grantee or other beneficiary of the deed or instrument may, in addition
to any other remedies available under law, bring a civil action for injunctive relief
against the person.
(3) If a plaintiff prevails in an action under sub. (2), the court shall award to
the plaintiff the costs of the action, including, notwithstanding s. 814.04 (1),
reasonable attorney fees incurred in connection with the action.
SECTION 7.0Nonstatutory provisions.
(1) LEGISLATIVE INTENT STATEMENT. Covenants in deeds and other instruments
that are discriminatory based on race and other protected classes are unenforceable
under the 1968 federal Fair Housing Act, 42 USC 3601 to 3631, and Wisconsin's open
housing law, s. 106.50, and are against the governmental purpose of allowing an
owner of real property to discharge and release a discriminatory restriction from real
property that is affected by a deed or other instrument that contains a discriminatory
restriction.
SECTION 8.0Initial applicability.
(1) DISCRIMINATORY RESTRICTIONS VOID; RETROACTIVE APPLICATION. The treatment
of s. 710.25 (2) first applies retroactively to a deed or other instrument that contains
a discriminatory restriction, as defined in s. 710.25 (1), and that is created before, and
applies to a deed or other instrument that contains a discriminatory restriction and
that is created on or after, the effective date of this subsection.
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SECTION 8 ASSEMBLY BILL 444
(2) DISCRIMINATORY RESTRICTIONS IN REAL PROPERTY INSTRUMENTS; INJUNCTIVE
RELIEF. The treatment of s. 895.12 first applies to a deed or other instrument that is
drafted on the effective date of this subsection.
SECTION 9.0Effective dates. This act takes effect on the day after publication,
except as follows:
(1) The treatment of ss. 59.43 (9) (d) and 710.25 (5) takes effect on the first day
of the 5th month beginning after publication.
(END)
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