By Michael Van Someren
On March 1, 2016, Wisconsin enacted a new statute and repealed and restated another existing statute, both related to the doctrine of adverse possession in the State of Wisconsin. The newly created statute § 893.305, Wisconsin Statutes, creates a mechanism for property owners to delay a potential adverse possessor’s claim by allowing the record title holder to record an “Affidavit of Interruption” with the register of deeds’ office, which will restart the time period that an adverse possessor must continuously meet the requirements of adverse possession.¹ The repealed and recreated statute, Wisconsin Statutes § 893.29, prohibits adverse possession by or against any Wisconsin governmental entity.²
1. Adverse Possession in Wisconsin
Wisconsin’s adverse possession doctrine is a mix of statute and case law. Under Wisconsin’s adverse possession doctrine, there are three scenarios in which a person or entity may take title to the real property owned by another person or entity: (1) by continuously occupying the property for 20 years and claiming the property as his or her own property despite having no instrument actually conveying the property to the adverse possessor;³ (2) by continuously occupying the property for 10 years under “color of title” (usually occurring when a written instrument or court judgment mistakenly conveys property to the adverse possessor);⁴ or (3) by continuously occupying the property for 7 years under color of title and payment all taxes and assessments associated with real property being paid by the adverse possessor during the 7 year period.⁵
Under any of the three methods of adversely possessing a record title holder’s property, the adverse possessor’s occupation of the property must be hostile, open and notorious, exclusive and continuous for the statutory period.⁶ Hostility does not have to mean deliberate or with unfriendly animus on the part of the adverse possessor, but simply means that due to the adverse possessor’s claims and use of the disputed property, the true owner is unable to assume possession of the property (i.e., that the adverse possessor is claiming title to the property).⁷ Further, open and notorious simply requires that the adverse possessor present to the general public that it is the owner of the property. By improving the property, cultivating it, or constructing enclosures on the property, the adverse possessor is openly and notoriously claiming title to the property.
Title to the adversely possessed real estate passes to the adverse possessor once all of the elements have been satisfied.⁸ An adverse possessor is not required to file an action to quiet title to protect his or her right to the adversely possessed property.
2. Defeating Adverse Possession Claims
Traditionally, there have been two methods to prevent adverse possession. The first, and most cost-effective, method is for the record title holder to send a letter to the adverse possessor granting the adverse possessor a license to use the property as he or she had been using the property. This license destroys the hostility element of adverse possession, a required element under the adverse possession doctrine. Since the adverse possessor is no longer occupying the land under claim of title, but under permission from the record title holder, the adverse possessor cannot obtain title to the property through adverse possession. Meanwhile, the record title holder may revoke the license at any time. This allows the record title holder to eject the adverse possessor when it is convenient for the record title holder, without having to worry about losing title to the disputed property in the meantime through adverse possession.
The second method to fight adverse possession is to file an action to quiet title in the appropriate court. In an action to quiet title, the parties ask the court to review the evidence and determine the true boundaries of the disputed property.
The Wisconsin legislature, through its enactment of § 893.305 of the Wisconsin Statutes, has provided a third method to prevent adverse possession. Section 893.305 allows the recording an “Affidavit of Interruption” in the register of deeds’ office for the county in which the disputed property is located. The Affidavit of Interruption must include the: (a) a legal description of the real estate allegedly being adversely possessed; (b) a statement confirming the person executing the Affidavit of Interruption is the record title holder; (c) a description of the adverse possession or adverse use intended to be interrupted; (d) a statement indicating the adverse use is interrupted; and (e) a statement that notice of the Affidavit of Interruption will be delivered to the adverse possessor. Along with the Affidavit of Interruption, the record title holder must (1) record a survey of the real estate in question (no older than 5 years), and (2) provide notice of the Affidavit of Interruption to the adverse possessor directly or through publication.
The effect of recording an Affidavit of Interruption and providing notice of its recording to the adverse possessor is that “any period of continuous adverse use under s. 893.28(1) of real estate described in the affidavit of interruption are interrupted on the date on which the affidavit of interruption is recorded.” However, “a new period of adverse possession or continuous adverse use may begin after the date on which the affidavit of interruption is recorded.”
The Affidavit of Interruption restarts the clock on the adverse possessor. It does not destroy an adverse possession. Under Wisconsin law, title to property vests in the adverse possessor upon satisfaction of the requirements of adverse possession. This means that if a record title holder records an Affidavit of Interruption after discovering that his or her neighbor has been using the record title holder’s land for the past 20, 10, or 7 years, as applicable, then under Wisconsin law, the adverse possessor will still be deemed to have acquired title to the property through adverse possession. The Affidavit of Interruption cannot interrupt or terminate an adverse possession that has already taken place, regardless of whether a court has rendered a judgment in favor of the adverse possessor. It should also be noted, the statute is silent as to how many times an Affidavit of Interruption may be recorded. Therefore, an adverse possession may or may not be deferred indefinitely, so long as Affidavits of Interruption are continuously and timely recorded.
As an example of the Affidavit of Interruption, suppose a person installs a fence that encroaches on his or her neighbor’s property. The portion of the neighbor’s property that is on the fence owner’s side of the fence may be subject to an adverse possession claim. The fence owner will need to keep the fence in place and meet all of the elements of adverse possession for a period of 20 years, at which point title to the neighbor’s property on the fence owner’s side of the fence will vest in the fence owner. If the neighbor files an Affidavit of Interruption 15 years after the fence was erected and does nothing more, the fence owner will still obtain title to the property in question; however, the required holding period will be a total of 35 years instead of 20 years (15 years from the date of initial installation, plus 20 years from the date of recording of an Affidavit of Interruption). This is due to the fact the Affidavit of Interruption did not destroy the adverse possession claim, but restarted the clock on the statutory holding period.
3. Adverse Possession by and from Wisconsin Governmental Bodies
Section 893.29 was repealed and recreated to not only prohibit any state or local governmental entity from adversely possessing another’s real estate, but also prohibit the adverse possession of government property. Previously, the statute simply prohibited governmental entities from adversely possessing real property owned by others. This means that parties that have been using government-owned real estate for the personal or business use will never be able to acquire title to such real estate, except through purchase of the real estate from the government. The only caveat is that those in which title to government-owned real estate has already vested, may still obtain documentary title to the real estate either (i) by filing an action to quiet title or (ii) by arguing it has obtained title to the real estate through adverse possession as a defense in an action to quiet title brought by another.
The changes to Wisconsin’s adverse possession law are small, but are likely to curtail the use of adverse possession. The Affidavit of Interruption will provide a method of delaying adverse possession, but by itself the Affidavit of Interruption will not destroy or prevent an adverse possession claim. The most cost-effective method of terminating or preventing an adverse possession claim is through the issuance of a license granting the adverse possessor the right to use the property.
The new prohibition on adverse possession of government-owned real estate will ensure that Wisconsin governmental bodies will always retain title to their land unless it is explicitly transferred by such governmental bodies.
If you have any questions regarding this article, please contact your Davis & Kuelthau, s.c. attorney or the author, Michael Van Someren, at 414.225.1433 / email@example.com.
¹ Wis. Stat. § 893.305(2)(2016).
² Wis. Stat. § 893.29(2016).
³ Wis. Stat. § 893.25.
⁴ Wis. Stat. § 893.26.
⁵ Wis. Stat. § 893.27.
⁶ Leciejewski v. Sedlak, 116 Wis.2d 629, 635 (1984).
⁷ Wilcox v. Estate of Hines, 2014 WI 60, ¶ 22, 355 Wis.2d 1 (2014).
⁸ See Harwick v. Black, 217 Wis.2d 691, 699 (Ct. App. 1998) (holding that “the twenty-year period of adverse possession does not need to occur immediately preceding the filing of a court action”; further holding that “[o]nce title is secured by adverse possession the possessor need not keep the flag of hostility waving forever.”).