Wisconsin Business Owners’ Latest Legal Tool

To a layperson, few doctrines within American law appear as archaic as “adverse possession,” the centuries-old common law doctrine that in most states – including Wisconsin – allows a trespasser, at least under certain circumstances, to acquire legal rights in real estate. As of March 3, 2016, however, a new Wisconsin law provides titleholders with a new legal tool to “interrupt” and block the trespasser’s efforts to acquire rights via adverse possession.

Wisconsin’s Version of Adverse Possession

Under Wisconsin law [see Wis. Stat. § 893.27], a person may acquire adverse possession rights if the person (sometimes in connection with his or her predecessors) “adversely possesses” real estate:

  • For 20 years when the adverse possession is not based on a written document or instrument
  • For 10 years when the adverse possession is based on a written document or instrument
  • Or for 7 years when the adverse possession is based on a recorded title claim and payment of taxes

Real estate is “adversely possessed” when the trespasser’s possession or use of the property is hostile to or inconsistent with the exercise of the titleholder’s rights. That possession or use must also be “continuous, visible, open, and notorious.” In most cases, the adverse possessor must cultivate or improve the property or otherwise occupy it with a substantial enclosure or that it be “cultivated” or improved” [Wis. Stat. § 893.25].

New Wisconsin Statute Allows For Special Document Filing

The new law, Wis. Stat. § 893.305, allows for the filing of an “affidavit of interruption” in the office of the register of deeds of the county in which the property is located, together with a survey of the property. The property owner must also provide a special notice to the neighbor or trespasser who is adversely possessing or using the real estate. If the identity of that person is not known, the owner must publish a Class 1 notice as provided by law.

In addition, the affidavit of interruption must include at least the following:

  • The legal description of the property being adversely possessed or adversely used;
  • A statement that the person executing the affidavit is the record owner;
  • A description of the adverse possession or use that the record titleholder is looking to disrupt;
  • A statement that adverse possession or adverse use is disrupted and that a new period of adverse possession may begin the day after the affidavit is recorded; and
  • A statement that the record titleholder will provide notice pursuant to section 893.305(4) of the Wisconsin Statutes.

Effect of the Recorded Affidavit

The recording of the affidavit operates to interrupt, or “restart” the clock on adverse possession. The recording of the affidavit does not, however, prevent any future adverse possession or adverse use claims from accruing. Moreover, if a party has already acquired adverse possession rights for the required statutory period, the affidavit of interruption does not terminate any such rights.

Milwaukee Real Estate, Business, and Commercial Litigation Attorneys

Are you currently involved in a real estate dispute? Do you have title concerns related to your property? Are you concerned about the acquisition of rights, such as a prospective easement, over your property? Perhaps you should consider filing an affidavit of interruption or take other action to protect your property rights. The Milwaukee business litigation firm of Kerkman Wagner & Dunn has more than 50 years of combined legal experience representing property owners and business concerns in Wisconsin. Our firm has big firm talent and provides small firm attention. Call us at 414-278-7000 or complete our online contact form.

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