Thanks to the assistance of the State Bar of Wisconsin Government Lawyers Division (GLD), I was able to attend the on-demand “Wisconsin Easements, Rights-of-way, and Eminent Domain” program put on by Halfmoon Education Inc., on Sept. 29, 2022.

Like many of GLD folks, I began my current position with a basic law school knowledge of property law that has been enhanced by the matters I’ve worked on. But we often don’t know what we don’t know, and we wonder if there’s more out there that we should know but do not. It was therefore very helpful to get an up-to-date overview of issues I am likely to face, as well as reassurance that my advice has been in line with that of the experts who presented.

This webinar – it had been held live but I was able to watch online afterward – had four speakers with about 100 years of collective experience:

• Mark Hazelbaker talked about easements (identifying, locating, classifying), and he also gave an excellent presentation about ethics pertaining to land transactions and disputes;

• Charles (Chad) Pollard IV talked about riparian and water rights;

• Ryan Simatic addressed eminent domain law; and

• Duane Wunsch discussed resolving title disputes from the perspective of a title company.

It was helpful for me as a governmental attorney to hear the perspectives of attorneys representing or employed by private litigants. All gave examples that involved the agency I work for, and this only enhanced the broadened perspective I was gaining.

Engineers and surveyors also participated in the webinar, and information geared toward them also added value for me.

All About Titles

While the attorney presentations were generally affirming and reassuring, the presentation on titles contained new information that we don’t typically learn in law school. I feel much better equipped to “talk title” now.

Here are some specific tips and insights regarding title that I learned (as supplemented through referring to Black’s Law Dictionary): “Title” is defined as the formal right of ownership of property, or vested rights in real property.¹

Hazelbaker framed “title” as being derived from the original sovereign who “asserted the legitimate monopoly of force required to establish civil society,” which includes keeping order by defending private property rights. He explained that the government’s role, after conveying a patent or grant to the first private property owner, is to maintain a system for registering property claims and adjudicating disputes over property rights.

Title deeds are evidence of title, but people can also have title by adverse possession or prescription.²

“Clear record title” means “title free from apparent defects, grave doubts, and litigious uncertainties, and is such title as a reasonably prudent person, with full knowledge, would accept.”³ Uncertainties or clouds on title may include rights of way, servitudes, and easements.⁴

Pollard explained that you get what you pay for in terms of title work. While an inexpensive title report or title commitment may uncover useful documents, you should determine how far you need to ask the title company to go back in time as part of its research in order to have a complete picture of title. Sometimes that means that it must research title back to the original patent or grant from the U.S. government. The bigger the project and the bigger the risk, the larger a research project you may want.

Titles and Boundary Disputes

Wunsch explained how title companies conduct research to resolve boundary disputes that may impact title. Key takeaways include:

• A title company typically looks at recorded deeds, liens, easements, covenants, and mineral rights, then provides insurance to cover defense costs regarding ownership in light of the interests it discovered.

• The grantee on a last deed is not necessarily the record titleholder: there may be a court order (such as a divorce decree, adverse possession ruling or partition judgment) or a probate record that establishes ownership.

• An unbroken chain of title (sequence of deeds) showing the land passing from the government to owner after owner down to the current seller can show record title.

• Deeds must comply with the statute of frauds and contain a correct, accurate and unambiguous legal description.

• It may be necessary to research tribal title records or railroad records to determine title.

• If there’s a potential defect in title, the company will raise an exception to coverage.

• If an attorney provides a survey or other boundary evidence to the title company, the company may expand its coverage to address evidence established in these documents.

• Sometimes it is necessary to visit a property or review more detailed maps to determine whether a title company can insure an easement appurtenant to a property: use of the easement must be possible, and it is helpful if past use of the easement is obvious.

• Some courts have found title through adverse possession based on mowing, so some surveyors now show mowed land on surveys. If a survey shows mowing or other evidence of potential adverse possession, a title insurance company may except from coverage any claims of adverse possession related to that evidence.

• If you would like a title company to remove their standard survey exception from a policy, you’ll have to provide them with an adequate survey. The best type of survey is an “ALTA/NSPS LAND TITLE SURVEY” with an attached “Table A” which requires a great deal of detail, including exterior dimensions of buildings, zoning setbacks, parking areas, the locations of all utilities, and encroachments.

• You must read the exceptions to coverage to understand what a title insurance policy covers.

• You may also obtain an ALTA Endorsements that provide coverage.

Better Prepared

The real-life examples provided during this seminar were very helpful, as they provided context for content we learned about in law school, and the information regarding title went beyond anything I learned in law school. I now feel better prepared to represent my client.

If other governmental lawyers typically receive their CLE credits through self-sponsored or other no-cost governmental CLEs, I encourage them to look for ways to attend conferences with nongovernmental perspectives. I appreciate that the GLD had the forethought to make scholarships possible.

This article was originally published on the State Bar of Wisconsin’s Government Lawyers Blog. Visit the State Bar divisions webpage or the Government Lawyers Division webpages to learn more about the benefits of division membership.

Endnotes

¹ Black’s Law Dictionary (6^th ed. 1990) at 1485.

² Id. at 1486.

³ Id. at 1485.

⁴ See id. at 1486.