Real Estate Transfer Fee Common Questions - A

Adverse Possession

If a court ordered judgment awards the plaintiff's property due to adverse possession, does this need a transfer return?
Yes. An action of adverse possession or "quiet title" is referred to as a declaration of interest in real property. This legal action is a correction to clarify existing property interests and is exempt from a transfer fee under state law (sec. 77.25(3), Wis. Stats.) (Exemption 3). The previous document that is being corrected, is the document where the grantee originally took title to the real estate or claimed to have an interest in the real estate.

When am I required to complete the agent section of the transfer return?
Whenever the grantor or grantee is not an individual. Enter the information of the person signing/accepting the documents for the grantor or grantee. For a trust, enter the name of the trustee for the agent.

Buyer A and Buyer C intend to purchase two adjacent lots from Seller B. Because A and C do not want B to know that C is buying Lot 2, A enters into a purchase agreement to buy the two adjacent lots from B and immediately transfers Lot 2 to C. Can a transfer fee be avoided on the conveyance from A to C?
If A and C have an agency agreement between them, this is an "agent to principal" transaction and could be exempt from fee under state law (sec. 77.25(9), Wis. Stats.). The use of Exemption 9 also requires the conveyance to be for "no consideration." If A transfers Lot 2 immediately after taking title from B and does not benefit from having held title other than be compensated for their time involved with the transactions, then Exemption 9 would apply.

Is there a fee due on the sale of "air rights" over land?

Yes. The sale of air rights is a sale of real estate as defined under state law (sec. 77.21(1), Wis. Stats.), and is subject to transfer return and fee. The definition under sec. 990.01(35), Wis. Stats. and 63 Am. Jur. 2d Property § 14, states: land extends from the surface downward to the center of the earth and upward indefinitely to the skies. Modern courts have recognized that this must be balanced with the right of flight.
Is there a transfer fee due on the sale of an "aviation easement?"
- No. An "aviation easement" just grants the "right-of-flight" and the "right to restrict…" to the grantee (airport) - not "possession" by the grantee
- Since it is not a conveyance of a real property interest as defined under state law (sec. 77.21(1) & (1m), Wis. Stats.), it is not subject to:
  - Filing a transfer return imposed under state law (sec. 77.22(1), Wis. Stats.)
  - A transfer fee imposed under state law (sec. 77.22(1), Wis. Stats.)
- To exempt an aviation easement from transfer return and transfer fee, include the following language below the legal description:
  "This is the sale of an aviation easement only and is therefore not a conveyance as defined by state law (sec. 77.21(1), Wis. Stats.), and is exempt from transfer return and fee imposed under state law (sec. 77.22(1), Wis. Stats.)."