Mr. William R. Glaves
Corporation Counsel
Vilas County Courthouse
Post Office Box 369
Eagle River, WI 54521
Dear Mr. Glaves:
You have asked whether a joint tenant's vendee's interest in a land contract may be terminated pursuant to the procedure set forth in section 867.045, Stats. In my opinion, regardless of the fact that the statute does not expressly refer to a vendee's interest in a land contract, a vendee under a standard land contract who is a joint tenant may use the procedure in section 867.045, to perfect the record as to the termination of a deceased joint vendee's interest.
Section 867.045 provides in relevant part,
Administrative joint tenancy or life estate termination for certain property. (1) Upon the death of any person having an interest as a joint tenant or life tenant in any real property or in the vendor's interest in a land contract or a mortgagee's interest in a mortgage, the surviving joint tenant or remainderman may obtain evidence of the termination of that interest of the decedent by providing to the register of deeds of the county in which such property is located a certified copy of the death certificate for the decedent and by providing, on applications supplied by the register of deeds for that purpose, the name and address of the decedent and of the surviving joint tenant or remainderman and the date of the decedent's death.
A land contract vendee who is a joint tenant possesses "an interest as a joint tenant or life tenant in... real property" within the scope of section 867.045. In Wisconsin, under the doctrine of equitable conversion, a land contract vendee is "the beneficial owner of the property since the execution of the land contract, and as such he enjoys the rights and sustains the burdens of ownership." City of Milwaukee v. Greenberg
, 163 Wis. 2d 28, 44, 471 N.W.2d 33 (1991). The court in Greenberg
made clear that to the extent property is conveyed under a standard land contract, the vendor does not "retain any ownership 'sticks or rights' other than the bare legal title," because the bundle is basically transferred to the vendee. Greenberg
, 163 Wis. 2d at 39. A land contract vendee thus possesses the sole beneficial ownership interest in the property to which the contract refers.
The law governing Wisconsin real estate transfer fees also reflects the principle that a land contract vendee has an interest in real property. Specifically, section 77.21, acknowledges the fact that a land contract vendee possesses an assignable ownership interest in real estate. That section states in relevant part: "(1) 'Conveyance' includes deeds and other instruments for the passage of ownership interests in real estate, including contracts and assignments of a vendee's interest therein...." Sec. 77.21, Stats. The reference in section 77.21(1) to "instruments for the passage of ownership interests in real estate" expressly includes those instruments which assign a vendee's interest in a contract. By contrast, the assignment of a vendor's interest under a land contract is not subject to the real estate transfer fee precisely and expressly because such an assignment "'does not provide for the passage of ownership interest in real estate.'" Greenberg
, 163 Wis. 2d at 44 n.11 (citing Wis. Admin. Code Tax 15.04(4)).
Thus, a vendee under a land contract unquestionably possesses an ownership interest in real property. Hence, a land contract vendee who is a joint tenant constitutes a "person having an interest as a joint tenant... in... real property," within the scope of section 867.045. Such a vendee who survives the death of his or her joint tenant may avail him or herself of the procedures in section 867.045, for obtaining evidence of the termination of the deceased joint tenant's vendee's interest.
Termination of the interest of a deceased joint tenant occurs upon his or her death, by operation of law. Section 700.17(2)(a), Stats., as amended by 1995 Wisconsin Act 360, states:
(2) Characteristics of joint tenancy. (a) Each of 2 or more joint tenants has an equal interest in the whole property for the duration of the tenancy, irrespective of unequal contributions at its creation. On the death of one of 2 joint tenants, the survivor becomes the sole owner; on the death of one of 3 or more joint tenants, the survivors are joint tenants of the entire interest, except that if a survivor disclaims under s. 701.27(2)(b)1., the joint tenancy is severed as of the date of death with respect to the disclaimed interest
.
A certificate of termination of joint tenancy is most reasonably understood as effecting the perfection of the record of transfer of title from joint to sole ownership, whereas the title itself has already been transferred by the death. See
Will of Barnes
, 4 Wis. 2d 22, 27, 89 N.W.2d 807 (1958) (discussing sec. 230.48(2), Stats., now renumbered as sec. 867.04, Stats).
It follows that the interest of a land contract vendee who is a joint tenant also terminates as a matter of law upon his or her death. Should there be only one surviving joint tenant, and assuming the survivor has not disclaimed, the survivor would then become the sole beneficial owner of the property. Should there be several surviving joint tenants, and assuming none of them has disclaimed, each would then become a joint tenant with the other surviving vendees of the entire vendees' interest. In either case, a vendee under a standard land contract who is a joint tenant may use the procedure in section 867.045(1), upon the death of another joint tenant, to perfect the record of transfer of title to the surviving vendee or vendees.
Sincerely,
James E. Doyle
Attorney General
JED:KMP:dah
The termination of a joint tenant's vendee's interest in a standard land contract can be perfected under the provisions of section 867.045, Stats.
