893.25 AnnotationWait! Is That My Land? More On Adverse Possession. Shrestha. Wis. Law. July/Aug. 2015.
893.26893.26 Adverse possession, founded on recorded written instrument. 893.26(1)(1) An action for the recovery or the possession of real estate and a defense or counterclaim based upon title to real estate are barred by uninterrupted adverse possession of 10 years, except as provided by s. 893.14 and 893.29. A person who in connection with his or her predecessors in interest is in uninterrupted adverse possession of real estate for 10 years, except as provided by s. 893.29, may commence an action to establish title under ch. 841. 893.26(2)(2) Real estate is held adversely under this section or s. 893.27 only if: 893.26(2)(a)(a) The person possessing the real estate or his or her predecessor in interest, originally entered into possession of the real estate under a good faith claim of title, exclusive of any other right, founded upon a written instrument as a conveyance of the real estate or upon a judgment of a competent court; 893.26(2)(b)(b) The written instrument or judgment under which entry was made is recorded within 30 days of entry with the register of deeds of the county where the real estate lies; and 893.26(2)(c)(c) The person possessing the real estate, in connection with his or her predecessors in interest, is in actual continued occupation of all or a material portion of the real estate described in the written instrument or judgment after the original entry as provided by par. (a), under claim of title, exclusive of any other right. 893.26(3)(3) If sub. (2) is satisfied all real estate included in the written instrument or judgment upon which the entry is based is adversely possessed and occupied under this section, except if the real estate consists of a tract divided into lots the possession of one lot does not constitute the possession of any other lot of the same tract. 893.26(4)(4) Facts which constitute possession and occupation of real estate under this section and s. 893.27 include, but are not limited to, the following: 893.26(4)(a)(a) Where it has been usually cultivated or improved; 893.26(4)(b)(b) Where it has been protected by a substantial enclosure; 893.26(4)(c)(c) Where, although not enclosed, it has been used for the supply of fuel or of fencing timber for the purpose of husbandry or for the ordinary use of the occupant; or 893.26(4)(d)(d) Where a known farm or single lot has been partly improved the portion of the farm or lot that is left not cleared or not enclosed, according to the usual course and custom of the adjoining country, is considered to have been occupied for the same length of time as the part improved or cultivated. 893.26(5)(5) For the purpose of this section and s. 893.27 it is presumed, unless rebutted, that entry and claim of title are made in good faith. 893.26 NoteJudicial Council Committee’s Note, 1979: This section collects in one place all material relating to 10-year adverse possession, integrating previous ss. 893.06 and 893.07, together with part of previous s. 893.10. Several language changes are the same as in s. 893.25, and the comments in the note following that section apply here. Three changes may work some change in substance, and should be particularly noted:
893.26 NoteSub. (2) (a) requires original entry on the adversely possessed premises to be “in good faith,” language not included in the previous s. 893.06. The addition is designed to make clear that one who enters under a deed, for example, knowing it to be forged or given by one not the owner, should not have the benefit of the 10-year statute. Some Wisconsin case law (contrary to the nationwide weight of authority) suggests otherwise, and the change is intended to reverse these cases. See Polanski v. Town of Eagle Point, 30 Wis. 2d 507, 141 N.W.2d 281 (1966); Peters v. Kell, 12 Wis. 2d 32, 106 N.W.2d 407 (1960); McCann v. Welch, 106 Wis. 142, 81 N.W. 996 (1900). Note, however, that good faith is required only at the time of entry, and need not continue for the full 10 years of adverse possession. 893.26 NoteSub. (2) (b) adds a requirement not contained in previous s. 893.10 that the written instrument or judgment under which original entry is made must be recorded within 30 days after the entry.
893.26 NoteSub. (2) (c) adds the requirement that the adverse possession be of all or “a material portion” of the premises described in the written instrument or judgment, replacing “some part” found in previous s. 893.06. This probably represents no change in present law, but is intended to make clear that possession of an insubstantial fragment of land described in a written instrument will not suffice as constructive possession of all the land described. [Bill 326-A]
893.26 AnnotationWhen a deed granted a right-of-way but the claimed use was of a different strip, no right based on use for ten years was created. New v. Stock, 49 Wis. 2d 469, 182 N.W.2d 276 (1971). 893.26 AnnotationThe doctrine of “tacking” allows an adverse possession claimant to add the claimant’s time of possession to that of a prior adverse possessor if the claimant is in privity with the prior adverse possessor. Discussing adverse possession of land uncovered by the recession of a body of water. Perpignani v. Vonasek, 139 Wis. 2d 695, 408 N.W.2d 1 (1987). 893.26 AnnotationFor purposes of determining a “claim of title,” a deed based on a recorded official government survey meets the requirements of this statute. Ivalis v. Curtis, 173 Wis. 2d 751, 496 N.W.2d 690 (Ct. App. 1993). 893.26 AnnotationIf the claimant’s use gives the titleholder reasonable notice that the claimant is asserting ownership and the titleholder does nothing, that failure to respond may result in losing title. However, in the absence of such use by the claimant, the titleholder is not obligated to do anything in order to retain title. Peter H. & Barbara J. Steuck Living Trust v. Easley, 2010 WI App 74, 325 Wis. 2d 455, 785 N.W.2d 631, 09-0757. 893.26 AnnotationThe regular use of a disputed area for hunting, placement of deer stands, and the making of a dirt road to a lake did not constitute open, notorious, visible, exclusive, and hostile use. The sound of gunshots does not gives a reasonably diligent titleholder notice of adverse possession. Gunshots would have been consistent with trespassers, as would portable deer stands, some kept in place all year. The dirt road and the trail continuing on to the lake were consistent with an easement to the lake rather than adverse possession of the entire disputed parcel. Peter H. & Barbara J. Steuck Living Trust v. Easley, 2010 WI App 74, 325 Wis. 2d 455, 785 N.W.2d 631, 09-0757. 893.26 AnnotationIn the absence of an express provision to the contrary, one who adversely possesses under an earlier version of the adverse possession statute may continue possession under the terms of that statute even after its repeal and re-creation. DNR v. Building & All Related or Attached Structures, 2011 WI App 119, 336 Wis. 2d 642, 803 N.W.2d 86, 10-2076. 893.26 AnnotationHey! That’s my land! Understanding Adverse Possession. Shrestha. Wis. Law. Mar. 2010.
893.27893.27 Adverse possession; founded on recorded title claim and payment of taxes. 893.27(1)(1) An action for the recovery or the possession of real estate and a defense or counterclaim based upon title to real estate are barred by uninterrupted adverse possession of 7 years, except as provided by s. 893.14 or 893.29. A person who in connection with his or her predecessors in interest is in uninterrupted adverse possession of real estate for 7 years, except as provided by s. 893.29, may commence an action to establish title under ch. 841. 893.27(2)(2) Real estate is possessed adversely under this section as provided by s. 893.26 (2) to (5) and only if: 893.27(2)(a)(a) Any conveyance of the interest evidenced by the written instrument or judgment under which the original entry was made is recorded with the register of deeds of the county in which the real estate lies within 30 days after execution; and 893.27(2)(b)(b) The person possessing it or his or her predecessor in interest pays all real estate taxes, or other taxes levied, or payments required, in lieu of real estate taxes for the 7-year period after the original entry. 893.27 HistoryHistory: 1979 c. 323. 893.27 NoteJudicial Council Committee’s Note, 1979: This section is new. It provides a 7-year limitation period in favor of an adverse possessor who has met all the requirements for the 10-year provision and who also has a recorded chain of title and paid the property taxes for the full 7 years. Many states provide similar or shorter periods under the same circumstances, while Wisconsin has given no statutory recognition to the importance of paying the taxes. One valuable role of adverse possession statutes is in title clearance. When a party enters in good faith, maintains possession, records all conveyances within 30 days and pays taxes for 7 years, the likelihood of genuine competing claims is small, and the gains in assurance of title from this section may well be significant. Some language from ss. 893.25 and 893.26 is repeated here; see notes to those sections for explanation. [Bill 326-A]
893.27 AnnotationIn the absence of an express provision to the contrary, one who adversely possesses under an earlier version of the adverse possession statute may continue possession under the terms of that statute even after its repeal and re-creation. DNR v. Building & All Related or Attached Structures, 2011 WI App 119, 336 Wis. 2d 642, 803 N.W.2d 86, 10-2076. 893.27 AnnotationHey! That’s my land! Understanding Adverse Possession. Shrestha. Wis. Law. Mar. 2010.
893.28893.28 Prescriptive rights by adverse user. 893.28(1)(1) Continuous adverse use of rights in real estate of another for at least 20 years, except as provided in s. 893.29 establishes the prescriptive right to continue the use. Any person who in connection with his or her predecessor in interest has made continuous adverse use of rights in the land of another for 20 years, except as provided by s. 893.29, may commence an action to establish prescriptive rights under ch. 843. 893.28(2)(2) Continuous use of rights in real estate of another for at least 10 years by a domestic corporation organized to furnish telegraph or telecommunications service or transmit heat, power or electric current to the public or for public purposes, by a cooperative association organized under ch. 185 or 193 to furnish telegraph or telecommunications service, or by a cooperative organized under ch. 185 to transmit heat, power or electric current to its members, establishes the prescriptive right to continue the use, except as provided by s. 893.29. A person who has established a prescriptive right under this subsection may commence an action to establish prescriptive rights under ch. 843. 893.28(3)(3) The mere use of a way over unenclosed land is presumed to be permissive and not adverse. 893.28 AnnotationOnce the right to a prescriptive easement has accrued by virtue of compliance with sub. (1) for the requisite 20-year period, the holder of the prescriptive easement must comply with the recording requirements within 30 years under s. 893.33 (2) or lose the right to continued use. Schauer v. Baker, 2004 WI App 41, 270 Wis. 2d 714, 678 N.W.2d 258, 02-1674. 893.28 AnnotationAs sub. (1) is written, it is more natural to read “of another” to modify “real estate,” rather than “rights.” That is, by continuous use, one may gain a prescriptive right in another’s real estate. The real estate in which a right is gained must belong to another person. A setback restriction in an owner’s deed was not a “right in real estate” belonging to “another” that the owner could use adversely by continually violating the setback. Hall v. Liebovich Living Trust, 2007 WI App 112, 300 Wis. 2d 725, 731 N.W.2d 649, 06-0040. 893.28 AnnotationSub. (2) applies to permissive uses. An agreement that permitted an electric utility to construct and maintain electrical poles and transmission lines on a landowner’s property that was revocable upon 30 days’ written notice gave the utility “rights in real estate of another” under sub. (2). Use of the property for more than ten years by the utility established the prescriptive right to continue the use. Williams v. American Transmission Co., 2007 WI App 246, 306 Wis. 2d 181, 742 N.W.2d 882, 07-0052. 893.28 AnnotationUnder the common law, a party’s use of another’s real property becomes a prescriptive right upon: 1) an adverse use; 2) that is visible, open, and notorious; 3) under an open claim of right; and 4) continuous for 20 years. With respect to public utilities, sub. (2) displaces the common-law adversity requirement, reduces the vesting period from 20 to ten years, and abrogates the claim-of-right requirement. Bauer v. Wisconsin Energy Corp., 2022 WI 11, 400 Wis. 2d 592, 970 N.W.2d 243, 19-2090. 893.28 AnnotationA continuous use is one that is neither voluntarily abandoned by the party claiming a prescriptive right nor interrupted by an act of the landowner or a third party. A use remains continuous even when the user takes measures reasonably necessary to maintain or improve the use, so long as those measures are not inconsistent with the use’s original nature and character nor more burdensome on the landowner. In this case, the public utility’s periodic repairs to its natural-gas line, which included replacing 84 feet of the line by splicing new pipe of the same diameter and material into the existing line, constituted reasonable maintenance to continue its initial purpose, not an interruption or voluntary abandonment. Bauer v. Wisconsin Energy Corp., 2022 WI 11, 400 Wis. 2d 592, 970 N.W.2d 243, 19-2090. 893.29893.29 No adverse possession by or against the state or political subdivisions. 893.29(1)(1) Except as provided in sub. (2) (b), no title to or interest in real property belonging to the state or a city, village, town, county, school district, sewerage commission, sewerage district or any other unit of government within this state may be obtained by adverse possession under s. 893.25, 893.26, or 893.27 or by continuous adverse use under s. 893.28. 893.29(1m)(1m) Except as provided in sub. (2) (d), no city, village, town, county, school district, sewerage commission, sewerage district, or any other unit of government within this state may obtain title to private property, as defined in s. 943.13 (1e) (e), by adverse possession under s. 893.25, 893.26, or 893.27. 893.29(2)(a)(a) Subsection (1) applies to a claim of title to or interest in real property based on adverse possession or continuous adverse use that began on or after March 3, 1996. 893.29(2)(b)(b) Subsection (1) does not affect title to or interest in real property obtained on or before March 3, 2016, by adverse possession under s. 893.25, 893.26, or 893.27 or by continuous adverse use under s. 893.28. 893.29(2)(c)1.1. Subsection (1m) applies to a claim of title to real property based on adverse possession under s. 893.25 that began after March 3, 1996. 893.29(2)(c)2.2. Subsection (1m) applies to a claim of title to real property based on adverse possession under s. 893.26 that began after March 3, 2006. 893.29(2)(c)3.3. Subsection (1m) applies to a claim of title to real property based on adverse possession under s. 893.27 that began after March 3, 2009. 893.29 AnnotationThis section does not apply to a railroad. A railroad right-of-way is subject to adverse possession, the same as other lands. Meiers v. Wang, 192 Wis. 2d 115, 531 N.W.2d 54 (1995). 893.29 AnnotationIn the absence of an express provision to the contrary, one who adversely possesses under an earlier version of the adverse possession statute may continue possession under the terms of that statute even after its repeal and re-creation. DNR v. Building & All Related or Attached Structures, 2011 WI App 119, 336 Wis. 2d 642, 803 N.W.2d 86, 10-2076. 893.29 AnnotationUnder former sub. (2) (c), 1987 stats., the claimant was barred from adversely possessing any real property of a highway, including property held by the town for highway purposes. The parcel in question, although not improved as a highway, was dedicated as a street on a subdivision plat that was recorded in 1986. As such, under s. 236.29 (1), the recorded subdivision plat vested fee simple ownership of the disputed parcel in the town, which held that parcel in trust for use as a street. Under those circumstances, the disputed parcel was held by the town for highway purposes and was not subject to adverse possession. Casa De Calvo v. Town of Hudson, 2020 WI App 67, 394 Wis. 2d 342, 950 N.W.2d 939, 19-1851. 893.30893.30 Presumption from legal title. In every action to recover or for the possession of real property, and in every defense based on legal title, the person establishing a legal title to the premises is presumed to have been in possession of the premises within the time required by law, and the occupation of such premises by another person shall be deemed to have been under and in subordination to the legal title unless it appears that such premises have been held and possessed adversely to the legal title for 7 years under s. 893.27, 10 years under s. 893.26 or 20 years under s. 893.25, before the commencement of the action. 893.30 HistoryHistory: 1979 c. 323. 893.30 NoteJudicial Council Committee’s Note, 1979: This section is based on previous s. 893.05. The last sentence is expanded to recognize the new 7-year statute in s. 893.27. The words “and in every defense based on legal title” are added to make clear that the presumption of this section applies whether the holder of legal title is suing to recover the land, or a claiming adverse possessor is suing to establish title to it. [Bill 326-A]
893.30 AnnotationThe lowest burden of proof applies in adverse possession cases. Kruse v. Horlamus Industries, Inc., 130 Wis. 2d 357, 387 N.W.2d 64 (1986). 893.305893.305 Affidavit of interruption; adverse possession and prescriptive use. 893.305(1)(a)(a) “Affidavit of interruption” means an affidavit that satisfies the requirements under sub. (3). 893.305(1)(b)(b) “Neighbor” means a person who holds record title to real estate abutting the record title holder’s real estate. 893.305(1)(c)(c) “Survey” means a property survey that complies with ch. A-E 7, Wis. Adm. Code, and that contains a certification by a professional land surveyor that the survey shows all visible encroachments on the surveyed land. 893.305(2)(2) Interruption by affidavit. A record title holder may interrupt adverse possession of real estate under s. 893.25, 893.26, 893.27, or 893.29 and adverse use of real estate under s. 893.28 (1) by doing all of the following: 893.305(2)(a)(a) Recording, in the office of the register of deeds for the county in which the record title holder’s parcel is located, an affidavit of interruption along with a survey of the record title holder’s parcel that was certified no earlier than 5 years before the date of recording. 893.305(2)(b)(b) Providing notice of the recorded affidavit of interruption in accordance with sub. (4). 893.305(2)(c)(c) Recording proof that notice was provided in accordance with sub. (4) in the office of the register of deeds for the county in which the record title holder’s parcel is located. 893.305(2)(d)(d) If notice is provided under sub. (4) (a), recording on the neighbor’s abutting parcel, within 90 days of the date the neighbor received the notice, a notice of the recorded affidavit of interruption that includes a copy of the recorded affidavit of interruption, including the attached survey. A notice of the recorded affidavit under this paragraph shall include a legal description of the neighbor’s abutting parcel and of the record title holder’s parcel. 893.305(3)(3) Affidavit of interruption. A record title holder shall include in an affidavit to interrupt adverse possession of real estate under s. 893.25, 893.26, 893.27, or 893.29 or adverse use of real estate under s. 893.28 (1) at least all of the following: 893.305(3)(a)(a) A legal description of the parcel of land that contains the real estate that is being adversely possessed or adversely used, as described in par. (c). 893.305(3)(b)(b) A statement that the person executing the affidavit is the record title holder of the parcel. 893.305(3)(c)(c) A general description of the adverse possession or adverse use that the record title holder intends to interrupt by recording the affidavit. 893.305(3)(d)(d) A statement that the adverse possession or adverse use of real estate described in par. (c) is interrupted and that a new period of adverse possession or adverse use may begin the day after the affidavit is recorded. 893.305(3)(e)(e) A statement that the record title holder will provide notice as required under sub. (4). 893.305(4)(a)(a) If the record title holder knows, or has reason to believe, that the person who is adversely possessing or adversely using the record title holder’s real estate is a neighbor, the record title holder shall provide notice to the neighbor by sending all of the following by certified mail, return receipt requested, to the neighbor’s address, as listed on the tax roll: 893.305(4)(a)1.1. A copy of the recorded affidavit of interruption, including the attached survey. 893.305(4)(a)2.2. A notice of the record title holder’s intent to, within 90 days of the date the notice is received, record a notice of the affidavit of interruption on the neighbor’s real estate that abuts the record title holder’s parcel. Notice under this subdivision shall include a reference to this section. 893.305(4)(b)(b) If the record title holder knows the identity of the person who is adversely possessing or adversely using the record title holder’s real estate and the person is not a neighbor, the record title holder shall provide notice to the person by sending the person a copy of the recorded affidavit of interruption, including the attached survey, by certified mail, return receipt requested, to the person’s last-known address. Notice provided under this paragraph shall include a reference to this section. 893.305(4)(c)(c) If the person who is adversely possessing or adversely using the record title holder’s real estate is unknown to the record title holder at the time the affidavit of interruption is recorded, the record title holder shall provide notice by publishing a class 1 notice under ch. 985 in the official newspaper of the county in which the record title holder recorded the affidavit of interruption. The published notice shall include all of the following: 893.305(4)(c)1.1. A statement that the record title holder recorded an affidavit of interruption. 893.305(4)(c)2.2. The recording information for the recorded affidavit of interruption. 893.305(4)(c)3.3. The street or physical address for the parcel on which the affidavit of interruption was recorded.
