A homestead created and maintained with stolen or embezzled property, or by the wrongful appropriation of property rightly belonging to others, is not protected by the homestead exemption. Paulman v. Pemberton, 2001 WI App 164
, 246 Wis. 2d 909
, 633 N.W.2d 715
To qualify for the homestead exemption in sub. (1), a debtor generally needs to own or lease property that the debtor in fact occupies as the debtor's homestead. However, sub. (1) carves out two distinct circumstances in which the homestead exemption is not impaired despite a lack of occupancy by the owner for some identified period of time: 1) a temporary removal exception, which involves an owner's intentionally transient absence from the homestead; and 2) the owner's sale of the homestead with intent to use the proceeds to obtain a new homestead. The combined result of these two exceptions to the general occupancy requirement is that the exemption on a homestead is lost—in statutory terms, it is “impaired"—when the debtor removes herself or himself from a homestead with no intent either to reoccupy or to sell the house and use the proceeds to procure another homestead. Anderson v. Anderson Tooling, Inc., 2021 WI App 39
, 398 Wis. 2d 595
, 961 N.W.2d 911
To preserve the homestead exemption under sub. (1), a debtor is not required to intend to “permanently" reoccupy the homestead. In this case, the judgment debtors' temporary absences while actively looking for a potential homestead in Iowa to replace their Wisconsin homestead did not impair the exemption, even if they planned that their serial absences and reoccupancies of the Wisconsin property as their homestead would eventually end with the establishment of a new homestead, perhaps even in the near future. Anderson v. Anderson Tooling, Inc., 2021 WI App 39
, 398 Wis. 2d 595
, 961 N.W.2d 911
Merely having a property right to what could become a new homestead if it were occupied as a homestead does not, on its own, lead to the establishment of a new homestead and the abandonment of an old one. Actual occupancy as a homestead is required. Anderson v. Anderson Tooling, Inc., 2021 WI App 39
, 398 Wis. 2d 595
, 961 N.W.2d 911
A judgment debtor's assertion of a homestead exemption generally establishes a presumption that the property is homestead property. A judgment creditor may rebut that presumption by showing that the debtor claiming the exemption does not occupy the claimed homestead, including for the reason that the debtor has established a new homestead before having sold the homestead on which the debtor claims the exemption. When a debtor ceases to occupy the premises of the claimed homestead, it is the debtor's burden to show that the circumstances qualify for one of the two exceptions to impairment based on the debtor's absence from the homestead. Anderson v. Anderson Tooling, Inc., 2021 WI App 39
, 398 Wis. 2d 595
, 961 N.W.2d 911
The homestead exemption is void under the supremacy clause of the U.S. Constitution to the extent that it impedes a federal court restitution order. United States v. Lampien, 89 F.3d 1316
Establishment and Abandonment of a Wisconsin Homestead. Kreitler. 1973 WLR 876.
Judgment Lien Claimants' Rights Against Homestead Exemption Interests: An Equitable Distribution of Mortgage Foreclosure Sale Proceeds. Steinmetz. 1981 WLR 697.
Certain property of spouse exempt from execution. 815.205(1)(1)
Property described in s. 806.15 (4) (intro.)
is exempt from execution on a judgment lien that attaches to that property under s. 806.15 (4) (b)
if the property is not available under s. 766.55
to satisfy the obligation for which the judgment was rendered.
If execution is issued in connection with the enforcement of a judgment lien on property that is exempt under sub. (1)
from execution on the judgment lien, a person with an ownership interest in the property other than the judgment debtor may, at any time before the sale of the property, notify the officer making the levy that the property is exempt from execution. The person making the notification of the exemption shall provide the officer with a description of the property.
If notification is made under par. (a)
, sale of the property is stayed if, within 5 days after the notification, demand on the owner of the judgment is made by a person with an ownership interest in the property other than the judgment debtor for a recordable release of the property from the judgment. If within 5 days after the demand the owner of the judgment fails to execute the recordable release, the stay on the sale of the property continues if a person with an ownership interest in the property other than the judgment debtor commences an action under s. 806.04
for declaratory relief within 15 days after the demand was made. The stay on the sale of the property continues until the court determines whether the property is exempt under sub. (1)
. If no action under s. 806.04
is commenced within the required period, the stay lapses on the expiration of the required period.
If the sale of property is stayed under this subsection, no additional stay on the sale of that property is available under this subsection, regardless of whether the additional stay is sought by the person who initially gave notice under par. (a)
or by any other person with an ownership interest in the property.
History: 1991 a. 301
Homestead, how set apart after levy. 815.21(1)(1)
Whenever a levy shall be made upon lands of any person, the landowner may notify the officer making such levy, at any time before the sale, that the landowner claims an exempt homestead in such lands, giving a description thereof, and the landowner's estimate of the value thereof; and the remainder alone shall be subject to sale under such levy, unless the plaintiff in the execution shall deny the right to such exemption or be dissatisfied with the quantity or estimate of the value of the land selected.
If such plaintiff is dissatisfied with the quantity selected or the estimate of the value thereof, the officer shall cause such lands to be surveyed, beginning at a point to be designated by the owner and set off in compact form. After the lands are surveyed and set off, if in the opinion of the plaintiff, the same shall be of greater value than $75,000, the officer may still advertise and sell the premises so set off, and out of the proceeds of such sale pay to the exempt homestead claimant the sum of $75,000 and apply the balance of the proceeds of such sale on the execution; but no sale shall be made in the case last mentioned unless a greater sum than $75,000 is paid for said premises. The expenses of such survey and sale shall be collected on the execution if the owner claimed as the owner's homestead a greater quantity of land or land of greater value than the owner was entitled to; otherwise such expenses shall be borne by the plaintiff.
If such survey be made the land not exempt shall be sold, but if any person shall neglect or refuse to select the person's exempt homestead and notify such officer, such officer shall, upon request of the plaintiff, and may without such request, give notice to such person that at a time and place to be therein named such officer will survey and locate the exempt homestead; and unless such person shall on or before the time so fixed select such exempt homestead, such officer shall survey and locate and set the same off in a compact form. If the owner after such notice selects the owner's exempt homestead, this section shall apply the same as if the owner had selected it before such notice.
A homestead so selected and set apart by such officer shall be the exempt homestead of such person. The costs of such notice and survey shall be collected upon the execution. A failure of the officer to set apart such homestead shall affect such levy, only as to such homestead; and the failure of such person to select that person's homestead shall not impair that person's right thereto, but only that person's right to select the same when such selection is lawfully made by such officer. After such homestead is thus set off by such officer, if, in the officer's opinion or in the opinion of the plaintiff, the premises are of greater value than $75,000 the officer may sell the same as where the owner makes the selection.
If the land claimed as an exempt homestead exceeds in value $75,000, the officer shall not be bound to set off any portion thereof but may sell the same, unless the debtor shall make the debtor's selection of such a portion thereof as shall not exceed $75,000 in value.
History: 1973 c. 168
; Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.21; 1985 a. 153
; 1993 a. 486
; 2009 a. 80
There is a strong public policy to protect the homestead exemption, even in the face of inaction. Sub. (1) provides that when there is a levy upon the lands of any person, that person can claim a homestead exemption at any time before sale. Anchor Savings & Loan Ass'n v. Week, 62 Wis. 2d 169
, 213 N.W.2d 737
Indemnity may be required.
If there is any reasonable doubt as to the ownership of the property or as to its liability to be taken on the execution the officer may require sufficient security to indemnify the officer for levying upon such property.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.24; 1993 a. 486
The term “reasonable" requires that the officer provide a reason for requiring security. Ter Maat v. Barnett, 156 Wis. 2d 737
, 457 N.W.2d 551
(Ct. App. 1990).
Money applied; negotiable instruments sold.
Upon executions against property the officer shall levy upon any current money of the United States and shall pay and return the same without exposing it for sale, and the officer may also levy upon and sell any evidences of debt circulated as money, or a bond or other instrument for the payment of money which is negotiable or payable to the bearer or holder.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.25; 1993 a. 486
When personal property is subject to a security interest, the right and interest of the debtor in such property may be sold on execution against the debtor, subject to the rights, if any, of the secured party.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.26; 1993 a. 486
Notice of sale of personal property, manner, adjournment. 815.29(1)(1)
No execution sale of personal property shall be made unless 20 days previous notice of such sale has been given by posting a notice thereof in one public place of the town or municipality where such sale is to be had and, if the county where such sale is to be had maintains a website, by posting a notice on the website. If the town or municipality where such sale is to be had maintains a website, the town or municipality may also post a notice on its website. The notice shall specify the time and place of sale but when any property seized is likely to perish or depreciate in value before the expiration of the 20 days the court or a judge may order the same to be sold in such manner and upon such terms as the best interests of the parties demand. Every such sale shall be made at auction between the hours of 9 a.m. and 5 p.m. and no property shall be sold unless it is in view of those attending the sale, except as provided in ss. 71.91 (5) (c) 2.
and 108.22 (3) (b)
and in the case of the sale of the interest of the judgment debtor in property in the possession of a secured party. It shall be offered for sale in such lots and parcels as is calculated to bring the highest price.
Such sale may be adjourned as provided in s. 815.31
for sale of real estate.
Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.29; 2009 a. 325
; 2015 a. 55
; 2017 a. 157
; 2017 a. 365
Notice of sale of realty; manner; adjournment. 815.31(1)(1)
The time and place of holding any sale of real estate on execution shall be publicly advertised by posting a written notice describing the real estate to be sold with reasonable certainty in one public place in the town or municipality where such real estate is to be sold and, if the county where such real estate is to be sold maintains a website, by posting a notice on the website, at least 3 weeks prior to the date of sale; and also in one public place of the town or municipality in which the real estate is situated, if it is not in the town or municipality where the sale is to be held and, if the county where such real estate is situated maintains a website, also posting a notice on the website. If the town or municipality where such real estate is situated or is to be sold maintains a website, the town or municipality may also post a notice on its website.
A copy of the notice of sale shall be printed each week for 3 successive weeks in a newspaper of the county prior to the date of sale.
If there be no newspaper published in the county and the premises are not occupied by any person against whom the execution is issued or by some person holding as tenant or purchaser under the person against whom the execution is issued, such notice shall be so published in a paper printed at Madison.
The court, or a judge, upon application of the party issuing the execution shall direct, by order, the newspaper in which the publication of the notice is to be made.
If at the time appointed for any such sale the sheriff considers it in the interest of all persons concerned, the sheriff may adjourn the sale from time to time, not exceeding in all 3 months. In case of such adjournment public notice thereof shall be given at the time and place fixed for the sale. If the adjournment shall be for more than one day further notice shall be given by posting or publishing the same, or both, as the time and circumstances may admit.
Every sale shall be at auction between 9 o'clock in the forenoon and 5 o'clock in the afternoon.
History: 1973 c. 189
; Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.31; 1993 a. 486
; 2009 a. 325
; 2011 a. 136
; 2017 a. 365
Execution; sale in parcels; limitation.
When real estate offered for sale on execution consists of several lots, tracts or parcels they shall be separately offered for sale; and if any person claiming to be the owner of any of such lots or parcels or an interest or estate therein or claiming to be entitled to redeem the same shall require it to be offered for sale separately, the sheriff shall offer the same for sale accordingly. No more shall be sold than shall appear necessary to satisfy the execution.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.33.
Execution sale without notice.
Any officer who shall sell real estate upon execution without having given the previous notices directed by s. 815.31
, or otherwise than in the manner prescribed by law, shall be liable to the party injured in the sum of $1,000 damage and also for the actual damages sustained.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.34.
Execution; taking down notice.
If any person shall take down or deface any notice of a sale upon execution put up by any officer, previous to the day of sale therein specified, unless upon satisfaction of the execution or upon the consent of the parties to the action, such person shall be liable to the party suing out such execution in the sum of $50.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.35.
Execution sale, want of notice, when immaterial.
The omission of any officer to give the notice of execution sale required or the taking down or defacing of any such notice shall not affect the validity of any sale made to a purchaser in good faith, without notice of any such omission or offense.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.36.
Execution sale; officer not to purchase.
The officer to whom any execution shall be directed and the officer's deputy holding any execution and conducting any sale in pursuance thereof shall not, directly or indirectly, purchase any property at such sale; and every purchase made by such officer or deputy, or to the officer's or deputy's use, shall be void.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.37; 1993 a. 486
Execution, certificate of sale, recording. 815.38(1)(1)
Upon the sale of real estate on execution the officer making the same shall make out and subscribe duplicate certificates of such sale containing a particular description of the premises sold; the price bid for each distinct lot or parcel; the whole consideration money paid; and the time when such sale will become absolute and the purchaser will be entitled to a conveyance pursuant to law and shall record one of the duplicate certificates within 10 days after the sale in the office of the register of deeds and shall deliver the other to the purchaser. If there are 2 or more purchasers a certificate shall be delivered to each.
Promptly following every execution sale the sheriff shall return the execution into court and record with it a detailed report of his or her doings upon the execution.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.38; 1993 a. 301
See s. 59.32 (2)
for provision that sheriff is to collect his fees on execution in the same manner as the sum collected under the writ.
Execution sale; redemption of real estate. 815.39(1)(1)
Except as provided in sub. (2)
, within one year after an execution sale the real estate sold, or any lot, tract or portion that was separately sold, may be redeemed by the payment to the purchaser, to the purchaser's personal representatives or assigns, or to the sheriff of the county where the real estate is situated, for the use of such purchaser, of the sum paid on the sale thereof, together with the interest from the time of the sale.
If an execution sale is for a lien filed under s. 823.23 (5)
, the period of redemption under sub. (1)
is 2 months.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.39; 1993 a. 486
; 2001 a. 86
Execution sale; who may redeem. 815.40(1)(1)
Redemption from execution sale of real estate may be made by a person whose right and title was sold or, if the person is dead, by the person's devisee of the premises sold, and if the same shall not have been devised, by the deceased's heirs; or, by any grantee of such person who shall have acquired an absolute title to the premises sold, or to any lot, parcel or portion separately sold.
Any such heir or devisee or grantee who shall have acquired an absolute title to a portion of the estate sold or a portion of any lot, tract or parcel that shall have been separately sold may redeem the portion on the same terms and in the same manner as if the heir, devisee or grantee were grantee of the whole lot or parcel, and shall have the same remedy to enforce contributions from those who shall own the residue thereof as if the sum required to be paid by the heir, devisee or grantee to effect such redemption had been collected by a sale of the portion belonging to such grantee, heir or devisee.
If there be joint tenants or tenants in common in premises sold each tenant may redeem the share or interest belonging to that tenant by paying to the purchaser or officer, a sum that will bear the same proportion to the whole sum bid therefor as the redeemed share bears to the whole number of shares in such premises together with the interest.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.40; 1993 a. 486
Execution sale; redemption makes sale void.
Upon redemption of any real estate sold on execution, the sale of the premises redeemed and the certificates of such sale, so far as they relate thereto, shall be null and void.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.43.
Execution; purchaser's interest. 815.44(1)(1)
Who may acquire.
In case the premises sold on execution or any part of them are not redeemed within the year prescribed by ss. 815.39 (1)
then the interest of the purchaser may be acquired within 3 months after the expiration of the redemption period by the persons and on the terms prescribed in this section.
Creditors, mortgagees, interest.
Any creditor of the person against whom such execution issued having a judgment or a recorded mortgage which is a lien upon the premises sold, or upon any lot or parcel or portion separately sold, may within fifteen months from the time of such sale by paying the sum paid on the sale thereof, together with interest from the time of such sale, thereby acquire all the rights of the original purchaser, subject to be defeated in the manner mentioned in s. 815.48
Sales of undivided interests.
Any owner of such judgment or mortgage which is a lien upon any undivided share or interest in any real estate sold under execution, may, within the same time, on the same terms and in the same manner, acquire the title of the original purchaser to such share or interest by paying such part of the whole purchase money of such real estate as shall be in a just proportion to the amount of such share or interest.
Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.44; 1997 a. 254
; 2001 a. 86
Execution sale; creditors may acquire title of preceding creditor.
Whenever any creditor shall acquire the title of the original purchaser, pursuant to s. 815.44
, any other creditor who might have acquired such title may become a purchaser thereof from the first creditor who acquired the same upon the following conditions:
By paying to such first creditor, the first creditor's personal representatives or assigns the sum which the first creditor paid to acquire such title, together with interest thereon from the time of the first creditor's payment.
If the judgment or mortgage by virtue of which the first creditor acquired the title of the original purchaser be prior to the judgment or mortgage of such 2nd creditor and is still a lien as to such 2nd creditor the 2nd creditor shall also pay to such first creditor the amount due on the first creditor's judgment or mortgage.
In the same manner any third or other creditor who might have acquired the title of the original purchaser may become a purchaser thereof from the second, third or other creditor who may have become such purchaser from any other creditor, upon the terms and conditions before specified in this section.
If the original purchaser of any premises shall also be a creditor of the defendant against whom the execution issued, and as such might acquire the title of any purchaser according to the preceding provisions, the original purchaser may avail himself or herself of his or her judgment or mortgage, in the manner and on the terms prescribed, to acquire the title which any creditor may have obtained.
But the judgment creditor, under whose execution the real estate was sold cannot acquire the title of the original purchaser or of any creditor to the premises so sold by virtue of the judgment on which such execution issued.
Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.48; 1993 a. 486
Payment on acquisition of purchaser's or creditor's interest.
The sums required to be paid to acquire the title of the original purchaser at the execution sale or to become a purchaser from any creditor may be paid to such purchaser or creditor, to the purchaser's or creditor's representative or assigns or to the then sheriff of the county where the real estate is situated; upon such payment being made the title of the original purchaser shall be thereby transferred to the creditor acquiring the same and from such creditor to any other creditor becoming a purchaser thereof.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.52; 1993 a. 486
Execution sale; evidences of right of creditor to acquire title.
To entitle any creditor to acquire the title of the original purchaser on the execution sale or to become a purchaser from any other creditor, the creditor shall exhibit to such purchaser or other creditor or to the sheriff the following evidences of the creditor's right:
A certified copy of the creditor's judgment or of the record of the creditor's mortgage.
A certified copy of all assignments of such judgment or mortgage which are necessary to establish the creditor's claim.
A certified copy of the creditor's letters testamentary or other letters authorizing the administration of the decedent's estate, in the case of a personal representative.
An affidavit of such creditor or his or her attorney, or agent stating the sum due on such judgment or the sum owing on such mortgage at the time of claiming such right to purchase. Within 3 days after making such acquisition such creditor shall record such evidences of his or her right in the office of the register of deeds of the county where the original certificate of sale is filed.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.53; 1993 a. 301
; 1995 a. 224
; 2001 a. 102