There are quite a few sets of rules that affect your digital property, including federal privacy law, state probate law, and the law governing what requests for information custodians, such as Google, have to produce to. Additionally, there are multiple ways that a user of an account can either prohibit or allow disclosure of his/her account’s contents, such as through an online designation with the provider of the account, a trust or will, power of attorney, or an entirely separate consent instrument. What if a user has inconsistency between these disclosure options? Wisconsin’s Digital Property Act gives one of these options the final say – the “online tool.” [1]

An online tool is a setting that a custodian, like Google, provides to you which allows you, as the user, to “provide directions for disclosure or nondisclosure of digital property to a designated recipient”; it is separate and distinct from the terms of service, aka the “i agree to the terms and conditions” checkbox. [2]

1. Google’s Inactive Account Manager:

Google’s online tool is called the “Google Inactive Account Manager” and allows you to choose up to 10 people who can have access to your data after long periods of inactivity. You specify what the period of inactivity is in 3-month increments between 3-18 months. You can also specify which data your designated person/people have access to, including your log-in activity, calendar, Google Business Profile, Google Photos, Gmail, etc.

2. Facebook’s Legacy Contact:

Facebook’s Legacy Contact allows a user to convert their account to a memorialized profile or to permanently delete their account upon their passing. A memorialized profile has the word “Remembering” next to the user’s name and allows friends and family to share memorizes on the user’s page. The tool allows you to appoint a legacy contact who can accept friend requests, write a pinned post for your page (such as information for your memorial service), and request to delete your account, among other things.

If you choose to request that your account be permanently deleted upon your passing, you should share this information with your loved ones, as Facebook first needs proof of your death to do so. [3]

3. Apple’s Legacy Contacts:

Apple allows users to select multiple people as their legacy contacts who are then granted access to user-specified information, such as the user’s photos, messages, files, notes, apps, etc. When you choose someone as your legacy contact, they are then given an access key. Your legacy contact is not required to have an Apple account, however if they do, they may “accept” the key and digitally store a copy of it in their Apple account settings.

To activate the key, your contact must have a copy of your death certificate and the key, which then must be sent to Apple for verification. Upon verification, Apple will send your legacy contact their own special account that they can then use to access your designated information. Your information is then automatically deleted from the legacy contact’s account after 3 years from the date the account was activated. [4]

4. Microsoft:

Interestingly, Microsoft does not offer an online tool. Microsoft states that if you know the decedent’s log-in credentials, you may use those to cancel the decedent’s subscriptions and account. If you do not know the decedent’s log-in credentials, then the account is automatically deleted after two years of inactivity. If you would like to request a decedent’s digital property held by Microsoft, then you must serve the company with a court order or subpoena, which may or may not result in the company producing the decedent’s digital property. [5]

Schedule a consultation with Wynn at Law, LLC today to discuss the estate planning process

Planning for the disposition of your digital property upon your passing is only one aspect of the estate planning process. For assistance with ensuring that you have a comprehensive estate plan in place, contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

[1] Wis. Stat. 711.04

[2] Wis. Stat. 711.03(18)

[3] https://www.facebook.com/help/103897939701143?helpref=faq_content

[4] https://support.apple.com/en-us/102631

[5] https://support.microsoft.com/en-us/account-billing/accessing-outlook-com-onedrive-and-other-microsoft-services-when-someone-has-died-ebbd2860-917e-4b39-9913-212362da6b2f

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Hypothetical 1:

Imagine you are the seller. You go under contract to sell your home, however the deal falls apart based on the buyer’s inspection. The buyer provided you with a copy of the inspection report, and in an effort to be up-front with your next buyer and avoid another inspection, you provide the second buyer with a copy of the first buyer’s inspection report.

The seller gave a copy of the first buyer’s inspection report to the second buyer “for informational purposes only.” Is this allowed?

Yes, a seller may choose to provide a potential buyer with a previous buyer’s inspection report, unless the seller and previous buyer agreed not to share the report. The seller is under no obligation to the home inspector to keep the report private.

Can the listing agent provide copies of a prior buyer’s inspection report to prospective buyers?

Listing agents should avoid providing a copy of the report to guard against any possible confidentiality concerns under Wis. Stat. 452.133(1)(d) because the report may be considered confidential, unless the agent has the consent of all parties to the first transaction.

Can the new buyer still obtain an inspection?

Yes. The new buyer is not precluded from making his or her offer contingent upon an inspection contingency, wherein the new buyer would have a new home inspection done.

Cautionary Note: The new buyer should be aware that he or she can only object to newly discovered defects that were not disclosed in the prior inspection report. It is presumed that the second buyer had “actual knowledge” of the defects disclosed in the first buyer’s inspection report, given that the new buyer was given a copy of the prior report. In other words, the first buyer’s inspection report was supplied to the second buyer “for informational purposes only.”

Who does the inspector owe a duty to if errors or omissions are discovered in the inspection report?

Home inspectors are only liable to the person who contracted for the inspection and not other parties that the inspection was provided to for informational purposes. [1] Therefore, if a second buyer chooses not to obtain his or her own inspection and instead relies on a seller-provided inspection report ordered by a previous buyer, the second buyer has no recourse against an inspector for any errors or omissions that may be contained in that report.

Is the buyer required to give a copy of the inspection report or testing reports to the seller, even if the buyer does not issue a Notice of Defects? 

Yes. If a buyer has an inspection or testing done (such as radon, mold, water or septic testing), the buyer is required to supply the seller with a copy of all inspection and test reports, even if the buyer is not requesting any action from the Seller. This requirement is clearly spelled out in the WB-11 Residential Offer to Purchase at lines 190-191, which states that “Buyer agrees to promptly provide copies of all inspections and testing reports to Seller.” 

Hypothetical 2:

Suppose that you are a seller who has been presented with an offer that has the box checked to include an inspection contingency, including the seller’s right to cure the defects, however in the “additional provisions” section of the offer, it states that “the inspection shall be for informational purposes only.”

Can the buyer present the seller with a notice of defects?

Yes, the buyer is not precluded from presenting the seller with a notice of defects if the inspection contingency was included with the offer. A buyer should be aware in this case that a seller may not be willing to fix the inspection defects or provide a credit. The seller may have thought that the buyer would not ask for any repairs, given the language in the offer stating that the inspection was “for informational purposes only.”

How can the buyer clearly ask for an inspection but not make their offer contingent upon one?

If a buyer feels comfortable with making an offer not contingent upon an inspection contingency, but would still like an inspection to be completed, this should be clearly spelled out in the additional provisions section of the offer. To clearly communicate the buyer’s intent, the buyer should not check the box for an inspection contingency in the offer. The buyer or buyer’s agent should also include provisions in the offer allowing the buyer’s inspector access to the property upon advance notice to ensure that all parties are on the same page. The buyer’s agent may also request that the buyer sign paperwork confirming the risk of foregoing a home inspection contingency.

Can an inspection for “informational purposes only” cause issues with the buyer’s lender?

Possibly, depending on the buyer’s lender and the type of loan the buyer is applying for. FHA, VA, and other government-backed lenders require certain minimum property standards relating to a property’s habitability and safety in order for the loan to be issued. When government-backed lenders discover conditions falling below their minimum standards, the lender may require that these conditions be fixed. This can cause issues if the offer is not subject to an inspection contingency.

Schedule a consultation with Wynn at Law, LLC today to discuss the real estate purchase and sale process

Many of the issues discussed above can be resolved with clear contract drafting. When all parties understanding the contract, the majority of disputes disappear.

Whether you would like to discuss general real estate questions or need help ensuring that a specific offer is clearly drafted, Wynn at Law, LLC’s attorneys are here to help. Contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

[1] Wis. Stat. 440.977(2)

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Planning for Pets While Living – Power of Attorney and Trust

Before delving into how to plan for your pet’s care once you pass, it is also worth considering how to plan for your pet while you are still living, but may be unable to care for them, such as during an unexpected hospital stay. This can be done via a Durable Power of Attorney aka a Financial Power of Attorney. This type of Power of Attorney allows you to designate someone as your agent so that they may handle different types of property you have. Yes, pets are considered property under the law, but at Wynn at Law, LLC, we know pets are so much more, a beloved family member, which is why we enjoy assisting people who want to plan for caring for a pet.

Most Financial Powers of Attorney give your agent power to handle your “personal” property and according to Wisconsin law, a pet counts as personal property. A general Financial Power of Attorney may be sufficient in a pinch, but at Wynn at Law, LLC, we can assist you with a better option. If the care of your pet is one of your primary concerns or if your pet has medical issues, we can aid you in additional language that should be included in your Power of Attorney to ensure that your agent will be able to seamlessly care for your pet. We specifically address your agent’s authority to board your pets, to authorize veterinarian care, and compensation for these endeavors, for instance.

If you have a trust and become incapacitated, your successor trustee may need to step in to help care for your pet. In this case, Wynn at Law, LLC can assist you in drafting specific language in your trust for caring for a pet. This will allow your trustee to step in and immediately care for your pet.

Life Care Centers for Pets

If you prefer to leave the care of your pet to an organization rather that an individual, you may want to consider a pet life care center. These are organizations that will agree to provide care for your pets after your passing. Some of these organizations require you to leave them a minimum cash gift via your estate plan in order to fund your pet’s care. This is an attractive option for many pet owners. Some organizations even offer grief therapy for your pet and agree to find your pet a new loving home.

If you would like to arrange for your pet’s care via one of these organizations upon your passing, you should first, research and consult with the organization of your choice to obtain their requirements. Second, meet with an attorney at Wynn at Law, LLC and we will assist you in memorializing your request pursuant to the organization’s requirements.

Diet and Medication Lists

One of the greatest gifts you can give to your pet’s future caregiver is clarity. Proactively maintaining a comprehensive diet and medication lists ensures that your pet’s caregiver can provide seamless continuity of care during an already stressful transition. This list should be as specific as possible and include things such as:

• precise dosages and delivery methods of medications if your pets take any,

• brand names and measurements of your pet’s food,

• known food allergies,

• preferred treats,

• vet information and copies of recent vaccinations, and

• microchip info if applicable.

Schedule a consultation with Wynn at Law, LLC today to discuss the estate planning process for you and your pet.

Planning for your pet’s care upon your passing is only one aspect of the estate planning process. For assistance with ensuring that you have a comprehensive estate plan in place, contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

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Debt Settlement:

Before discussing their debt with an attorney, many people decide to tackle the debt themselves by negotiating with their creditors to accept lower payments, negotiating with creditors to accept a lower overall amount to payoff the debt or by hiring a debt settlement company to do the negotiating for them. There are a few things to consider when using a debt settlement company to ensure the process goes as expected.

1. The Order Your Debts Are Paid:

The first thing to consider is how the debt settlement company allocates your payments. Some companies will take your payments and allocate them equally to all of the creditors that you have negotiated settlements with. Other companies may take your payments and allocate them to your smallest or oldest debts first. The latter option is not recommended and can have negative consequences, as some of your creditors may be left in the dark and not receive a single cent for some time. This often leads to those in-the-dark creditors pursuing their legal rights against you, which could result in a garnishment of your wages or a judgment against you.

2. Research, Research, Research:

The second thing to consider is whether the debt settlement company you are considering using is following the law. Debt settlement companies who do business with consumers in Wisconsin must be licensed as an “adjustment service company.”[1] These companies are prohibited from collecting up-front fees from you and must follow specific disclosure requirements as to what their services and fees include. It is highly recommended that consumers considering using a debt settlement company do thorough research to avoid possible unintended consequences, such as digging yourself into deeper debt through interest and fees or even worse, falling victim to fraudulent debt consolidation company.

3. Credit and Tax Consequences:

While some debt settlement companies may claim that their assistance will not hurt your credit, that is generally not the case. Because you are agreeing to pay your creditors in an amount less than what is actually owed, your creditors will report this to your credit bureaus, and it will show up on your credit report. Additionally, cancelled debt is reported to the IRS and considered as income, which may then affect your income taxes.

Chapter 128:

Wisconsin Statues, Chapter 128, offers a voluntary debt repayment plan, often colloquially referred to as “Chapter 128”. Similar to debt settlement, you may pick and choose which debts to include in your debt repayment plan, however, with chapter 128, you may not negotiate your debts down to a lower, overall settlement amount. Rather, when you file your petition with a Wisconsin court, the debt owed at the time of filing is then amortized over 3 years into equal monthly payments.

The huge benefit to Chapter 128 is that it stops interest from accruing on the accounts that you include in the plan and that the creditors who are included in your plan are then prohibited from attempting to collect that debt. Therefore, the debt collector phone calls stop as do the fears of garnishment of your wages.

Chapter 128 is not for everyone. It is used for unsecured debt, such as credit card bills or medical bills, and cannot be used for secured debt, such as your mortgage or car loan. You must earn a consistent income to file and certify that you are financially able to make your monthly payment. It is highly recommended that you meet with an attorney to discuss the process and assist with calculating your debt payment to ensure it fits within your financial means, to avoid the pitfalls that come with failing to make all of your chapter 128 payments.

Chapter 7 Bankruptcy:

While debt settlement and Chapter 128 involve paying your debts back, Chapter 7 bankruptcy is often deemed a “fresh start” as it wipes your debts out, without having to pay them back. That statement may make Chapter 7 seem like the best option, however, not everyone qualifies for Chapter 7 bankruptcy. To file for Chapter 7 bankruptcy, your income must fall under certain limits based on your household size.

Even if you qualify for Chapter 7 bankruptcy, it may not be your only or best option. A Chapter 7 bankruptcy stays on your credit report for 10 years which may make it an unappealing option to those employed in certain financial professions or those who are trying to apply for credit or purchase a home in the very near future. The process of filing for Chapter 7 bankruptcy also involves a thorough analysis of your assets to determine whether they are exempt from being taken by the bankruptcy trustee and sold to satisfy your debts. If certain assets, like your home, are not exempt, you may want to look into either Chapter 128, debt settlement, or a Chapter 13 bankruptcy.

Schedule a consultation with Wynn at Law, LLC today to discuss your debt relief options

If you are already enrolled in a debt settlement program and curious as to what legal options you may have or if you are just starting to tackle your debt, our attorneys are here to assist you. Contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

[1] DFI Dealing With Debt Problems (Continued)

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If you are in the process of purchasing a new home, or have just purchased one, you may have encountered offers for a home warranty – but what exactly is a home warranty? Home warranties provide discounted repair and/or replacement services for components within your home, such as your heating, air conditioning, electrical, appliances, and sometimes even pool or garage door components. Home warranties are intended for items such as a broken water heater or an appliance repair. Essentially, a home warranty can cover things that your homeowner’s insurance would not (more on what homeowner’s insurance covers below). However, homeowners should clearly read their home warranty to understand what is covered, as many warranties do not provide coverage for repairs or replacements that can be attributed to a lack of maintenance. Rather, home warranties are often meant to cover unexpected repairs.

Do I need a home warranty?

The decision on whether to have or forego a home warranty is completely optional and situational. It is not a legal nor lender requirement that a home owner have a home warranty. When contemplating whether or not you should purchase a home warranty, here are some things to take into consideration.

First, do you have an emergency fund in place sufficient to cover unexpected home repairs? Consider what would happen if you needed to purchase a new refrigerator within the first year of owning your home, or even worse, an expensive air conditioning replacement – if this is something that you could not afford as an out-of-pocket expense, then it may be worth considering whether a home warranty could assist with the cost of an expensive and unexpected repair or replacement. Home warranties on average range from $300-$1,200 per year depending on the plan and components of the house.

Second, consider how old your home’s components are and what condition they are in. If you had a home inspection done, your home inspector will likely have gauged the remaining life of some of your components, so it may be worth taking a look at your inspection report. However, even brand new home components can unexpectedly go out – consider whether any of those components come with warranties of their own.

Third, what condition is your home in? If there are components that were already not functioning when you purchased the home, a home warranty will not assist with their repair or replacement. Review different home warranty plans and their exclusions to understand what would and would not be covered. For example, many home warranty plans contain exclusions for improper installation, mold, code violations, and structural home components (such as foundation cracks, roof repairs, etc.). If many of the repairs you need would not be covered, then you may able to work with the seller to negotiate the repairs or a credit to do the repairs yourself, assuming you have not already closed on the home.

How is a Home Warranty Different From Homeowner’s Insurance?

Home warranties are intended to cover the components of your home, such as plumbing, HVAC, and electrical. Homeowners insurance, on the other hand, covers damage to the actual structure of the home itself due to events outside the control of the owner, in most cases, such as a damaged roof due to a tree falling, fire or damage resulting from a natural disaster. If you have lending on your home, your lender will require you to have homeowner’s insurance, whereas the lender will not require you to have a home warranty. As always, it is best practice to thoroughly read any homeowners insurance policy or home warranty plan to understand what is and is not covered.

Schedule a consultation with Wynn at Law, LLC today to discuss the home buying process

Also see our related blog post, Five Things I Wish I Knew as a First Time Home Buyer. Contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

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This achievement reflects a consistent level of excellence recognized by peers, colleagues, and the Super Lawyers independent research team. The annual selection process evaluates attorneys across several criteria, including professional accomplishments, peer feedback, and overall standing in the legal community. Earning this honor once is notable—earning it five years in a row is a testament to Attorney Wynn’s ongoing dedication to her clients and her craft.

Attorney Wynn has built her reputation on providing clear guidance, compassionate support, and effective legal solutions in matters that deeply affect individuals and families. Her commitment to thorough communication and personalized service has made her a trusted resource throughout the region.

The firm celebrates this milestone as a reflection of the values at the heart of its practice: integrity, excellence, and unwavering client focus.

Wynn at Law, LLC looks forward to continuing to serve the community with the same high standards that earned this distinguished recognition year after year.

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A Financial Power of Attorney (FPOA) also known as a “property power of attorney” or a “durable power of attorney” is a document that gives a specified person power over your finances while you are living. The person creating the FPOA is the “principal” and the person who is given power over the principal’s finances is the “agent”.

When Does a Financial Power of Attorney Become Effective?

• Option 1 – Springing Financial Power of Attorney

You can either have your FPOA become effective upon a future date or immediately. Financial powers of attorney that become effective upon a future date are often termed “springing powers of attorney” and can be triggered either upon:

• An uncertain date, such as incapacitation, or
• a specific date that you know you may be unavailable.

In Wisconsin, incapacitation is the legal term for when a health care power of attorney becomes effective and it means that an individual is “unable to receive and evaluate information effectively or to communicate decisions to such an extent that the individual lacks the capacity to manage his or her health care decisions.”[1] Therefore, a financial power of attorney that becomes effective upon incapacitation essentially allows someone to handle your finances while you are in the hospital or experiencing a medical event that rises to the level of incapacitation.

Creating a FPOA to be effective upon a specific date that you know you will be unavailable for is a tool often used for real estate closings, allowing someone to sign on your behalf. These types of Financial Powers of Attorney are often called “limited” as they are intended for one specific purpose and terminate after that purpose has been fulfilled.

• Option 2 – Financial Power of Attorney That Becomes Effective Immediately

Alternatively, you can make your FPOA effective immediately. This is a great option for spouses who name each other as the other’s FPOA agent. It allows your spouse to handle a host of issues for you that can unexpectedly or expectedly arise. For example, your FPOA can give your spouse power to handle the filing of your income taxes for you if you were unable, or to even handle any government benefits you may be eligible for, such as Social Security and Medicare.

What Are the Pros and Cons of a Financial Power of Attorney?

The largest benefit of a FPOA is that having one in place can avoid court intervention. For example, suppose you end up in the hospital after a car accident and need some expensive surgeries, but to pay for the surgeries, you would benefit from leasing your home while you stay with a family member to recover. Having a FPOA in place would allow your agent to handle the leasing of your home for you (as long as your FPOA gives your agent the power to manage your real estate) and use the lease proceeds to continue paying your mortgage and avoid foreclosure.

Some other benefits of a FPOA include avoidance of delays in handling your finances (and the costly mistakes or interest charges that can follow) and overall convenience.

However, a FPOA can have some disadvantages if not thought out or misused. The largest risk of a FPOA is naming an agent who either mishandles or abuses your finances. While there are legal remedies available for a principal in these situations, beginning a court proceeding to pursue these remedies can be quite the headache. Another risk of a FPOA is failing to keep it up to date, which can result in a financial institution refusing to accept it.

While these risks exist, perhaps the biggest risk is failing to have a FPOA in place until its too late, as you can only have one done while you are of sound mind. The risk associated with naming an agent who mishandles or abuses your finances can be mitigated by choosing someone you trust and if that trust is ever extinguished, by revoking the document entirely.

The best practice when creating a FPOA is to have an attorney draft and explain the document to you. An attorney can cater the document to your specific situation and advise you on the best way to use the document. It is common practice for attorneys to offer FPOAs in conjunction with a will or trust plan, as your will or trust allows for the disbursement of your assets when you pass, whereas a FPOA allows for the flexibility of handling your assets while living.

[1] Wis. Stat. §155.01(8)

Schedule a consultation with Wynn at Law, LLC today to discuss the estate planning process

Whether you already have an estate plan in place in need of review, or would like to start from scratch, our attorneys are here to assist. Contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

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1. Naming Minors as a Direct Beneficiary of a Financial Account

Naming a minor child as a direct Payable On Death (POD) beneficiary of a financial account or as an insurance beneficiary could result in the money either going directly to the child’s guardian, or to the child the minute , he or she turns 18. Many 18-year-olds who come into large sums of money spend it in ways that may not be in their best interest or a child’s guardian may not be the person you want controlling the money either (i.e. divorced spouses). Parents or grandparents of minors should consider other estate planning tools, such as a trust, to avoid this situation.

2. Adding a Child as a Joint User to a Bank Account

Aging parents often find it advantageous to add one of their grown children to their bank accounts as a co-owner/ joint user so that their child can handle their finances. When the aging parent passes, the child on the bank account now owns those funds 100%. Parents with multiple children may not have anticipated this or assumed that the child would voluntarily share the funds with their siblings. In most cases, the child on the bank account does not share the funds with their siblings, and legally, they have no obligation to do so. Even if that child were to share the funds, unintended gift tax consequences can arise. Aging parents in this situation should consider using a Financial Power of Attorney to allow a child to manage their finances during their lifetime.

3. Improper Spousal Ownership of Real Estate

What happens in Wisconsin to real estate when one spouse passes? Does the surviving spouse automatically own the real estate? The answer lies in the way the spouses took ownership on the deed and the type of real estate owned. Simply having both spouses listed on the deed as owners (such as “Jack Doe and Jane Doe”) is not enough to avoid probate in most cases. Special consideration must be taken when titling real estate to ensure that a probate is not required between the spouses when one spouse passes. Having an attorney review your deed and fix any unintended titling mistakes can help prevent costly mistakes that can arise with what is often our biggest asset – the home! An attorney can also advise on options for passing down real estate when both spouses pass and common mistakes that can arise with these transfers and how to avoid them.

Schedule a consultation with Wynn at Law, LLC today to discuss the estate planning process

Whether you already have an estate plan in place and need to review it, or you would like to start from scratch, our attorneys are here to assist you. Contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

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No. Buyers can only conduct an inspection if they ask for one as part of their offer to purchase. There are two ways to do this. A buyer can request an inspection under the inspection contingency, which gives the buyer certain rights if the inspection discloses defects (more on this below), or, a buyer can request an inspection for informational purposes only.

The Scope of the Inspection Contingency:

The inspection contingency in Wisconsin’s residential offer to purchase allows a buyer to use a Wisconsin licensed home inspector to inspect the home for defects. Inspectors are governed by certain standards under Wisconsin law – namely that the inspector must “perform a reasonably competent and diligent inspection to detect observable conditions” of a home.[1]

Note the statute’s reference to “observable” conditions – the statute specifically states that an inspector is not required “to disassemble any component of an improvement to residential real property” in order to inspect it.[2] For example, if a seller has moving boxes piled up against a wall, the inspector is not required to move those boxes. The inspector may make note of the obstruction in their report, however, it is best practice for the buyer to attend the inspection so that they can ask the inspector questions and take note of any areas that may need further attention. Buyers are allowed to conduct follow-up inspections within their inspection contingency time frame.

There are certain areas of a home that an inspector must observe and report the condition of, which includes: the foundation, columns, flooring systems, roof(s), plumbing, interior, exterior, and heating/ air conditioning system to name a few.[3] The Wisconsin Administrative Code specifies which aspects of these areas that an inspector is and is not required to report on. For example, an inspector observing a roof must report on the roof’s drainage systems, flashing, and signs of leakage, but is not required to physically walk on the roof or inspect any roof solar systems .[4]

A buyer can also negotiate for an inspection of an area that would typically not be inspected by a Wisconsin licensed home inspector, such as a pool’s plumbing components or a more comprehensive look at the home’s chimney. If the buyer negotiates for these further inspections, the buyer should hire a licensed contractor who specializes in inspections of the specified area and consider whether they want to make their offer contingent upon a contractor disclosing no defects of these areas.

What are Defects in a Wisconsin Home Inspection?

Before delving into what a defect is, it is important to understand why they are important. If a buyer has negotiated for an inspection contingency, then he or she may present the seller with a “Notice of Defects.” A Notice of Defects outlines a buyer’s objection to specified defects identified in the home inspection report.

If the offer has given the seller the right to cure such defects, then upon presentation of the Notice of defects, the seller can elect to cure or fix the defects, at the seller’s expense, and before closing. However, a seller who has been given the right to cure or fix the defects can also choose not to fix the defects, at which point the offer becomes null and void.

Now, onto what a defect is. . . an inspection report will specifically label something as a defect if the inspector believes the condition will either: (1) significantly impair the health or safety of the occupants of a property if the issue is not repaired, removed, or replaced, or (2) would significantly shorten or adversely affect the normal life of the component.[5] However, the offer allows a buyer to object to one other type of defect that an inspector would not categorize as a defect in their report. The residential offer to purchase defines the third type of defect as “a condition that would have a significant adverse effect on the value of the Property”.

Inspections vs. Tests – What is and is NOT Included in a Home Inspection:

A buyer should be aware that the right to conduct an inspection under the inspection contingency does NOT give the buyer the right to conduct a test. The offer defines a test as “the taking of samples of materials such as soils, water, air or building materials from the Property for laboratory or other analysis”. Common types of tests include: mold, water, asbestos, radon, and lead-based paint. If a buyer does not specifically ask for these tests, then the buyer has no right to conduct the test.

This means that if the buyer has a specific concern, such as mold for health reasons, the buyer should be sure to ask for a separate mold test and to hire a certified mold inspector to conduct the test.

Wisconsin licensed home inspectors have certain minimum conditions that they must report on. However, an inspector may report on additional findings as he or she deems appropriate.[6] For example, an inspector may make note of a mold-like substance or rodent droppings, even though the inspector is not required to take note of such items.

Conclusion

An inspection is a crucial aspect of being an informed buyer. Understanding what a standard inspection covers, what constitutes a defect, and the distinction between inspections and test empowers you as a buyer. By proactively including an inspection contingency in your offer and knowing your rights, you can approach your home purchase with greater confidence and clarity.

Schedule a consultation with Wynn at Law, LLC today to discuss the home buying process

To provide you with the utmost confidence and security, Wynn at Law, LLC can assist you with the process of buying a home and can help you navigate the inspection process, including assistance with drafting a Notice of Defects, if needed.

Contact Wynn at Law, LLC today at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

[1] Wis. Stat. 440.975(2) (emphasis added)

[2] Id.

[3] Wis. Admin. Code SPS 131.32

[4] Wis. Admin. Code SPS 131.32(4)

[5] Wis. Stat. 440.97(2m)

[6] Wis. Stat. 440.975(8)(a)

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This situation is quite common – property is often bought jointly, with both party’s names on the title. (See our blog “Ways to Take Title to Real Estate” for more info). For example, you and significant other, a sibling, or even a business partner may jointly hold title to real estate. But what happens when joint owners can’t agree? Situations like this may arise in the context of a deteriorated business relationship, a breakup, inherited property, or from frustrated interests – i.e. one party wants to sell and the other party does not. When co-owners cannot come to an agreement on their own, seeking a partition action from the court may be necessary.

What is a partition action?

A partition action is a court-ordered process in which the court orders either a forced sale of the property (partition by sale) or divides the property into separate parcels, giving each party an equal interest (partition in kind). Partitions in kind are not always possible, such as when a non-marital couple jointly own a house on a single parcel – the house cannot be divided equally, thus the court would be more inclined to order a partition by sale.

In a partition by sale, there will be a judicial sale of the property, resulting in each party receiving their fractional share. The fractional share is determined by the equity that each party put into the property. Thus, if one party put in $60K, and the other put in $40K, the sale proceeds would be distributed according to the party’s 60/40 interest. However, the court has broad powers in partitioning property and may consider other factors such as: who was making mortgage payments (or lack thereof), improvement payments, who is making more use of the property, who is paying the taxes, etc.

How can I file a partition action?

Before you can file a partition action, you should be aware of how you and your co-owner(s) hold title and examine any agreements, contracts, wills, or trusts concerning the property, which may place limitations on partition. For example, if the property you seek to partition was part of an inheritance by will, the will should be consulted to determine whether the decedent placed any limitations on the property – for example, the decedent may have prohibited a partition by sale with the intention of keeping the property in the family.

Contact us today for a consultation at 262-725-0175 or our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has three office locations: Lake Geneva, Delavan, and Salem.

The post I bought a house with my significant other; we were never married, and now we broke up. What happens to the house? appeared first on Wynn at Law, LLC.