In my litigation practice, I defended quite a few cases where a home sale had gone wrong after a closing. Many times it happens because buyers think that sellers failed to disclose “known defects” in a Real Estate Condition Report. Sometimes, such cases turn to how the sellers define items they are required to disclose (although a mistake in definition is not necessarily a viable legal defense in this situation).

For example, if I am a seller of a home, do I need to disclose in a Real Estate Condition Report that a one-brick-high barrier around my flower bed is missing bricks? Any Real Estate Condition Report requires a disclosure of “known defects” of the walls. Ok, but is my one-brick-high barrier a wall? Practically it does not make sense, but legally? To answer, we need to first figure out what a “wall” is for purposes of disclosure in a Real Estate Condition Report, under the Wisconsin law.

The disclosure in the Real Estate Condition Report is a statutory requirement, but the Statutes do not define a “wall” in the relevant Chapter 709. Moreover, a “wall” is not defined in any real estate statutes. It appears that neither does the Wisconsin case law define a “wall” in cases that actually discuss walls and Real Estate Condition Report disclosure requirements, or in real estate cases in general.

Interpretation of a statutory language ‘begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry’ . . .  Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.’ Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. Meaning, look into a dictionary for a definition of an ordinary word. Black’s Law Dictionary defines wall as “an erection of stone, brick, or other material, raised to some height, and intended for purposes of security or enclosure.”

So then, is the one-brick-high structure around my flower bed a wall, for purposes of a Real Estate Condition Report? Arguably, yes because it is intended for purposes of enclosure of the flower bed. It appears that even a smallest barrier can be considered a wall, as long as its purpose is security or enclosure.

The bottom line is this: if in doubt, I really should err on the side of disclosure when it has to do with a Real Estate Condition Report.