April 19, 2013 – A state appeals court recently approved a couple’s claim of title to land by adverse possession, while clarifying that a possessor’s “subjective intent” is not always a relevant factor in determining whether a person’s claim of title is “hostile.”
Under Wisconsin’s adverse possession statute, Wis. Stat. section 893.25, real estate is possessed adversely only if the person possessing it “is in actual continued occupation under a claim of title, exclusive of any other right,” for 20 uninterrupted years.
Richard and Susan Wilcox claimed title to a 25-foot-wide strip of lakefront property on the shores of Lake Delton near Wisconsin Dells. In 2002, the Wilcoxes purchased a parcel of land abutting the lakefront strip. The previous owners did now own the strip.
However, the Wilcoxes claimed title to the lakefront property, arguing that they and their predecessors-in-interest had possessed it adversely for the requisite 20 years.
The circuit court rejected the claim, concluding that the predecessors-in-interest used the lakefront property with permission, meaning the occupation was not “hostile.”
The predecessors, Ronald and Mary Soma, had asked for permission to use and improve the land in 1982, but not from the true owner. The Somas, who began using the land in 1963, mistakenly believed a local company owned the lakefront strip.
Thus, the Somas believed they had permission to use and improve the lakefront property, and continued cultivating it openly by planting and mowing the grass, among other things. The Somas also excluded others by placing “no trespassing” signs nearby.
The apparent titleholder defending the Wilcoxes’ adverse possession claim, Lake Delton Holding LLC, argued that the Somas’ subjective belief on permission was fatal to the claim. But in Wilcox v. Lake Delton Holdings LLC, 2012AP1869 (April 11, 2013), a three-judge panel for the District IV Wisconsin Court of Appeals disagreed.
“[W]e conclude that the Somas’ subjective belief that they did not own the lakefront strip and had no intention of possessing it to the exclusion of others is not relevant,” wrote Judge Paul Lundsten, upholding the Wilcoxes’ claim by adverse possession.
The appeals panel did not hold that subjective intent is never relevant. “Rather, we rely on the general rule that the subjective intent of the parties is irrelevant, and we discern no reason not to apply that rule here,” Judge Lundsten wrote.
The more relevant question, the panel explained, is whether the true owner believed the adverse possessor claimed the land without the owner’s permission: “[W]hen it comes to adverse possession, the question is whether the use of the property by the possessor gives the appearance that the possessor claims exclusive right to the land.”
