Nov. 18, 2015 – Most lawyers study the doctrine of adverse possession in their first year of law school. From this academic setting, it may seem like an interesting but archaic doctrine. But in practice, it is an often used and often useful legal doctrine. Lawyers in Wisconsin and across the U.S. frequently apply it to clarify boundaries, to facilitate resolution of boundary disputes, and to clean up titles.

Despite this long-standing history, the legal doctrine of adverse possession in Wisconsin could soon come to an end. Recently proposed legislation would effectively eliminate the doctrine. This article discusses the history of adverse possession, the proposed legislation, and the arguments for and against the proposals.

A Long History

Adverse possession is a legal doctrine that has existed for hundreds of years, dating back to at least 1623 England.¹ Like many other real property laws, the doctrine carried over in the U.S. The basic concept of adverse possession is a limitation on the commencement of an action for the recovery of real property when the property has been adversely possessed by another for a certain period of time.

The standard elements of adverse possession are continuous, open, notorious, exclusive, and hostile possession for a prescribed time period. In Wisconsin, these requirements have essentially remained the same since the first territorial laws² and are presently codified at Wis. Stat. section 893.25, which requires 20 years of adverse possession. Other sections apply shorter limitation periods and slightly different elements for constructive adverse possession (section 893.26, 10 years) and where the claimant has also paid property taxes (section 893.27, seven years).

Constructive adverse possession requires possession based on a legal description in a written recorded instrument and typically involves title defects such as gaps in a chain of title. Wisconsin also has a somewhat unique history of authorizing title claims against the government based on adverse possession since 1931.³

Adverse possession against governmental entities is presently recognized under Wis. Stat. section 893.29 if the possession was “based upon a continuously maintained fence line which has been mutually agreed upon by the current landowners” for 20 years in addition to the standard elements of adverse possession.

This long history of Wisconsin’s adverse possession laws does not mean, however, that there have not been developments or changes to the law. To the contrary, the doctrine of adverse possession has evolved over time, primarily through case law decisions and in some instances through focused legislation,⁴ to address a wide variety of factual situations and changing property concepts. For example, recent Wisconsin adverse possession cases addressed adverse possession of hunting land,⁵ the impact of section 893.33 (limitations on actions concerning real estate) on adverse possession claims,⁶ and clarified that an adverse possessor must have “actual subjective intent” to claim title to the property in question.⁷ These recent cases and the hundreds of cases in Wisconsin’s history demonstrate that no adverse possession claim is the same.⁸

Proposed Legislation

Claims against the government. On Oct. 14, 2015, Sen. Howard Marklein (R, Spring Green) and Rep. Robert Brooks (R, Saukville) introduced 2015 Senate Bill 314,⁹ which would unequivocally prohibit adverse possession claims against a governmental entity unless the entire period of possession occurred prior to the effective date of the bill. The bill was referred to the Committee on Government Operations and Consumer Protection and is scheduled for public hearing today (November 18).

The City of Madison, the League of Wisconsin Municipalities, the Wisconsin Counties Association, and the Wisconsin Society of Land Surveyors registered in favor of this proposal while the Wisconsin Realtors Association has registered as neutral. There are no registrations opposing the bill.

Arguments in favor of SB 314:

• In most jurisdictions, adverse possession of government property is not authorized;

• The bill is necessary to protect the public’s interest;

• Governmental entities are not equipped to police boundaries;

Arguments against SB 314:

• Authorizing adverse possession against the government is part of Wisconsin’s historically strong stance on individual property rights;

• Disallowing adverse possession claims after an individual has adversely possessed property for a long period of time (20 years) is akin to a taking without just compensation;

• If the government or public can adversely possess individual property, the reverse should also be authorized.

Limitation on adverse possession claims. A second, far more expansive proposal to limit adverse possession claims, 2015 Senate Bill 344,¹⁰ was introduced on Oct. 19, 2015 by Sen. Chris Kapenga (R, Delafield) and Rep. David Craig (R, Big Bend). SB 344 would broadly prohibit any claim of adverse possession based on any period of possession after the effective date of the bill except under two very narrow exceptions.

First, the bill would allow future claims of adverse possession if “a court cannot identify or locate the record title holder” or the record title holder’s successor in interest. This exception would likely only apply in limited circumstances involving orphan parcels.

Second, the bill would allow adverse possession claims for land underlying a “principal building” and “up to 10 feet extending beyond the perimeter of the principal building.”

“Principal building” is defined as the “main building or structure” on a parcel. Thus, while this exception would apply if a house were constructed over a boundary, there could be no adverse possession claim in the far more common situation where a fence, a shed, or a driveway is constructed across the boundary. It also would not allow claims based on other potentially valuable improvements such as barns, detached garages, utility structures, boathouses, or guest houses. The bill further provides that if adverse possession is established under this exception, the claimant must pay the record owner for the adversely possessed property, for any diminution in value to the record owner’s remaining property and for prior real estate taxes. The impact could be significant.

For example, consider a situation where X sells his parents’ dairy farm following their death without commencing probate and without the signature of X’s sibling Y, who would have been entitled to one-half of the property. Z, who purchased the property in good-faith from X and who has paid the property taxes, would likely be able to clear up this potential title problem after seven years under section 893.27. If SB 344 is enacted, Z would only be able to claim title to the farm house and 10 feet surrounding the house, and would have to pay Y for the value of that property. Z would not be able to claim the barn, the milking parlor, the feed bunker, the driveway, or any other improvements. Depending on the location, Z might not even be able to access the house.

SB 344 does not address what will occur to improvements that do not meet the two limited exceptions such as in the example above. Presumably, the record owner could bring a trespass claim against the adverse claimant regardless of the length of possession and could force the removal or relinquishment of any improvements.

However, such a result would appear inequitable in many circumstances that commonly involve adverse possession. Whether a court could fashion or apply an equitable remedy in such circumstances would likely become an issue for future litigation.

The author of this article and the State Bar of Wisconsin’s Real Property, Probate and Trust (RPPT) are actively opposed to SB 344. The Wisconsin Land Title Association and the Wisconsin Chapter of the NAIOP Commercial Real Estate Development Association also registered against the bill, while the Wisconsin Realtors Association registered as neutral. There are no registrations in favor of this bill.

Arguments in favor of SB 344:

• Some proponents are “philosophically opposed” to adverse possession;

• The law allows individuals to “take” property without providing compensation to the record owner;

• Adverse possession is antiquated and is not needed in light of modern surveying techniques;

• The law leads to legal disputes.

Arguments against SB 344:

• The doctrine of adverse possession is a statute of limitations. It does not authorize trespassing any more than the statute of limitations for medical malpractice claims authorizes doctors to commit malpractice. As with other statutes of limitations, the doctrine exists in part to help create certainty in the future;

• The proposed changes will not have a deterrent effect or prevent boundary disputes. Adverse possession almost always involves mistaken boundaries and title defects, which will continue to occur regardless of any changes;

• The bill would negatively affect property values by requiring destruction of valuable improvements and by creating uncertainty;

• The bill would wipe out the law of adverse possession and would force Wisconsin to start over without any legal framework for resolving the countless boundary disputes that are certain to continue to occur. Rather than avoiding disputes, the bill would lead to many new legal issues;

• Adverse possession depends heavily on facts. The doctrine has developed over hundreds of years and has evolved to address many different situations. Applying a one-size-fits-all approach will result in many inequitable and likely unintended results.

Conclusion

The bills propose to eliminate the long-standing doctrine of adverse possession in Wisconsin, which is used often to resolve border and land disputes in Wisconsin.

If there is a real or identified need for changing the doctrine of adverse possession, we should address that specific need based on an informed view of the law and with consideration to the likely impacts.

Endnotes

¹ See Restatement of the Law, Property, Div. 3, Part 2, Ch. 15, Scope Note (1936).

² Statutes of the Territory of Wisconsin, p. 258-260, §§ 3-11(1839).

³ See State v. Barkdoll, 99 Wis. 2d 163, 169 N.W.2d 539 (Wis. 1980); and 65 Op. Atty Gen. Wis. 207 (1976). The general rule in the United States is that there is that there can be no adverse possession of state or political subdivision property. See. 2 C.J.S. Adverse Possession §§ 19-20 (2013).

⁴ For example, in 1979, legislature added the requirement that constructive adverse possession be “in good faith” to reverse case law decisions that were contrary to the nationwide weight of authority. Judicial Council Committee’s Note, 1979, regarding Wis. Stat. § 893.27.

⁵ Steuck Living Trust v. Easley, 2010 WI App 74, 325 Wis. 2d 455, 785 N.W.2d 631.

⁶ Engel v. Parker, 2012 WI App 18, 339 Wis. 2d 208, 810 N.W.2d 861.

⁷ Wilcox v. Estate of Hines, 2014 WI 60, 355 Wis. 2d 1, 849 N.W.2d 280.

⁸ There are at least 275 published Wisconsin cases relating to adverse possession and many additional unpublished cases.

⁹ See also, 2015 Assembly Bill 459, which was introduced on Oct.27, 2014 and subsequently referred to the Committee on Housing and Real Estate.

¹⁰ See also, 2015 AB 465, which was introduced on October 27, 2014 and subsequently referred to the Committee on Housing and Real Estate.