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. 893.305(4)(d)(d) If certified mail sent by a record title holder under par. (a) or (b) is returned to the record title holder as undeliverable, the record title holder shall provide notice by publication under par. (c). 893.305(5)(5) Effect of record. If a record title holder complies with sub. (2), any period of uninterrupted adverse possession under s. 893.25, 893.26, 893.27, or 893.29 of real estate described in the affidavit of interruption and 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 on the record title holder’s parcel, as required under sub. (2) (a). A new period of adverse possession or continuous adverse use may begin after the date on which the affidavit of interruption is recorded on the record title holder’s parcel. 893.305(6)(6) Entitled to record. The register of deeds shall record affidavits of interruption, proofs of notice under sub. (2) (c), and notices of affidavits of interruption under sub. (2) (d) in the index maintained under s. 59.43 (9). 893.305(7)(a)(a) An affidavit of interruption recorded under this section may not be construed as an admission by the record title holder that the real estate is being possessed adversely, as defined under s. 893.25, 893.26, 893.27, or 893.29, or is being used adversely under s. 893.28 (1). 893.305(7)(b)(b) An affidavit of interruption under this section is not evidence that a person’s possession or use of the record title holder’s real estate is adverse to the record title holder. 893.305(8)(8) Other procedures. The procedure for interrupting adverse possession or adverse use set forth in this section is not exclusive. 893.305 HistoryHistory: 2015 a. 200. 893.31893.31 Tenant’s possession that of landlord. Whenever the relation of landlord and tenant exists between any persons the possession of the tenant is the possession of the landlord until the expiration of 10 years from the termination of the tenancy; or if there is no written lease until the expiration of 10 years from the time of the last payment of rent, notwithstanding that the tenant may have acquired another title or may have claimed to hold adversely to his or her landlord. The period of limitation provided by s. 893.25, 893.26 or 893.27 shall not commence until the period provided in this section expires. 893.31 HistoryHistory: 1979 c. 323. 893.31 NoteJudicial Council Committee’s Note, 1979: This is present s. 893.11 renumbered for more logical placement and revised slightly for the purpose of textual clarity only. It complements and supplements s. 893.30 (previous s. 893.05). The 10-year period is retained as the period during which adverse possession (for any statutory period) cannot begin to run in favor of a tenant. Adoption of a 7-year statute in s. 893.27 does not affect the policy of this section. [Bill 326-A]
893.32893.32 Entry upon real estate, when valid as interruption of adverse possession. No entry upon real estate is sufficient or valid as an interruption of adverse possession of the real estate unless an action is commenced against the adverse possessor within one year after the entry and before the applicable adverse possession period of limitation specified in this subchapter has run, or unless the entry in fact terminates the adverse possession and is followed by possession by the person making the entry. 893.32 HistoryHistory: 1979 c. 323. 893.32 NoteJudicial Council Committee’s Note, 1979: This section replaces previous s. 893.04, which was very difficult to interpret with certainty. No change in substance is intended from the most reasonable probable interpretation of s. 893.04; indeed, the intention is to articulate that policy with greater clarity, consistent with the one decided case applying that section, Brockman v. Brandenburg, 197 Wis. 51, 221 N.W. 397 (1928). [Bill 326-A]
893.33893.33 Action concerning real estate. 893.33(1)(1) In this section “purchaser” means a person to whom an estate, mortgage, lease or other interest in real estate is conveyed, assigned or leased for a valuable consideration. 893.33(2)(2) Except as provided in subs. (5) to (9), no action affecting the possession or title of any real estate may be commenced, and no defense or counterclaim may be asserted, by any person, the state, or a political subdivision or municipal corporation of the state after January 1, 1943, that is founded upon any unrecorded instrument executed more than 30 years prior to the date of commencement of the action, or upon any instrument recorded more than 30 years prior to the date of commencement of the action, or upon any transaction or event occurring more than 30 years prior to the date of commencement of the action, unless within 30 years after the execution of the unrecorded instrument or within 30 years after the date of recording of the recorded instrument, or within 30 years after the date of the transaction or event, there is recorded in the office of the register of deeds of the county in which the real estate is located some instrument expressly referring to the existence of the claim or defense, or a notice setting forth the name of the claimant, a statement of the claims made, a description of the real estate affected and of the instrument or transaction or event on which the claim or defense is founded, and, if the claim or defense is founded on a recorded instrument, the date the instrument was recorded, the document number of the instrument, and, if the instrument is assigned a volume and page number, the volume and page where the instrument is recorded. This notice may be discharged the same as a notice of pendency of action. Such notice or instrument recorded after the expiration of 30 years shall be likewise effective, except as to the rights of a purchaser of the real estate or any interest in the real estate that may have arisen after the expiration of the 30 years and prior to the recording. 893.33(3)(3) The recording of a notice under sub. (2), or of an instrument expressly referring to the existence of the claim, extends for 30 years from the date of recording the time in which any action, defense or counterclaim founded upon the written instrument or transaction or event referred to in the notice or recorded instrument may be commenced or asserted. Like notices or instruments may thereafter be recorded with the same effect before the expiration of each successive 30-year period. 893.33(4)(4) This section does not extend the right to commence any action or assert any defense or counterclaim beyond the date at which the right would be extinguished by any other statute. 893.33(5)(5) This section bars all claims to an interest in real property, whether rights based on marriage, remainders, reversions and reverter clauses in covenants restricting the use of real estate, mortgage liens, old tax deeds, death and income or franchise tax liens, rights as heirs or under will, or any claim of any nature, however denominated, and whether such claims are asserted by a person sui juris or under disability, whether such person is within or without the state, and whether such person is natural or corporate, or private or governmental, unless within the 30-year period provided by sub. (2) there has been recorded in the office of the register of deeds some instrument expressly referring to the existence of the claim, or a notice pursuant to this section. This section does not apply to any action commenced or any defense or counterclaim asserted, by any person who is in possession of the real estate involved as owner at the time the action is commenced. This section does not apply to any real estate or interest in real estate while the record title to the real estate or interest in real estate remains in a railroad corporation, a public service corporation as defined in s. 201.01, an electric cooperative organized and operating on a nonprofit basis under ch. 185, a natural gas company, as defined in 15 USC 717a (6), or any trustee or receiver of a railroad corporation, a public service corporation, an electric cooperative, or a natural gas company, or to claims or actions founded upon mortgages or trust deeds executed by that cooperative, corporation, company, or trustees or receivers of that cooperative, corporation, or company. This section also does not apply to real estate or an interest in real estate while the record title to the real estate or interest in real estate remains in the state or a political subdivision or municipal corporation of this state. 893.33(6)(6) Actions to enforce easements, or covenants restricting the use of real estate, set forth in any recorded instrument shall not be barred by this section for a period of 40 years after the date of recording such instrument, and the timely recording of an instrument expressly referring to the easements or covenants or of notices pursuant to this section shall extend such time for 40-year periods from the recording. 893.33(6m)(6m) This section does not apply to an interest in any of the following: 893.33 NoteNOTE: See note following s. 700.40.
893.33(6m)(b)(b) An easement set forth in a recorded instrument that allows a person to travel across another’s land to reach a location or for another specified purpose if any of the following applies: 893.33(6m)(b)2.2. An instrument is recorded before January 1, 1960, and a notice, the instrument, or an instrument expressly referring to the easement is recorded on or after January 1, 1960, and before the property is sold or transferred. 893.33(6m)(b)3.3. The instrument or instruments expressly referring to the easement were recorded before January 1, 1960, and it is apparent from or can be proved from physical evidence of its use at such time when a person acquired the real estate subject to the easement. 893.33(7)(7) Only the following may assert this section as a defense or in an action to establish title: 893.33(7)(b)(b) A successor of a purchaser of real estate, if the time for commencement of an action or assertion of a defense or counterclaim under this section had expired at the time the rights of the purchaser in the real estate arose. 893.33(8)(8) If a period of limitation prescribed in s. 893.15 (5), 1977 stats., has begun to run prior to July 1, 1980, an action shall be commenced within the period prescribed by s. 893.15, 1977 stats., or 40 years after July 1, 1980, whichever first terminates. 893.33(9)(9) Section 893.15, 1977 stats., does not apply to extend the time for commencement of an action or assertion of a defense or counterclaim with respect to an instrument or notice recorded on or after July 1, 1980. If a cause of action is subject to sub. (8) the recording of an instrument or notice as provided by this section after July 1, 1980 extends the time for commencement of an action or assertion of a defense or counterclaim as provided in this section, except that the time within which the notice or instrument must be recorded if the time is to be extended as to purchasers is the time limited by sub. (8). 893.33 NoteJudicial Council Committee’s Note, 1979 [deleted in part]: This section is based primarily on previous 893.15. That section, an interesting combination of limitations statute and marketable title statute, was of significant help to real estate titles since enactment in 1941. The beneficial effects were strengthened and expanded by enactment of s. 706.09 in 1967. This draft preserves the useful essence of previous s. 893.15, while updating some language. Changes which affect substance are:
893.33 Note(1) The 60-year provision relating to easements and covenants is reduced to 40 years.
893.33 Note(2) New subs. (8) and (9) are transitional provisions applying to limitation periods already running the period specified in previous s. 893.15, or the period in this statute, whichever is shorter.
