Owner-in-possession exception defeats claim to adversely
possessed property
Adverse possessors who do not commence a property claim or notice
within the 30-year statute of limitations period, and subsequently lose
possession of the property, can still benefit from the
“owner-in-possession” exception.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
Jan. 5, 2012 – A state appeals court recently clarified what
happens when a property owner acquires disputed property by adverse
possession but is not “in possession” of it when an adverse
possession claim is commenced.
Specifically, the appeals court ruled that the
“owner-in-possession exception” will apply to trump a
statute of limitations defense even if the adverse possessor is not
actually in possession of the disputed land when a property suit is
filed.
Under Wis. Stat. sections 893.33,
claims and defenses to property interests are barred unless commenced
within 30 years of the event giving rise to the claim.
That means adverse possessors have 30 years to commence an action, or
file notice, to claim adversely possessed property. However, an
exception exists.
Section 893.33(5)
states, in pertinent part, that “[the statute of limitations] does
not apply to an 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.”
In 2003, Steven and Judy Parker (the Parkers) bought a 40-acre parcel
of land bordering 40 acres owned by siblings Ronald Engel and Sandra
O’Donnell (the Engels). The Engels acquired the land from
their parents, who purchased it in 1954.
As of 1974 (20 years later), the Engels adversely possessed a 15-
to 23-foot wide strip of land jutting into the recorded property now
owned by the Parkers, which the Parkers did not dispute. The Engel
family had long ago placed a fence, knowing the correct boundary line or
not, to lay claim.
However, after surveying the land in 2006, the Parkers erected survey
stakes on the recorded property boundary, told a local farmer who leased
land from the Engels to stop farming on their side of the stakes, and
eventually installed a new fence along the recorded boundary line.
The Engels filed suit in 2009, claiming title to the disputed land by
adverse possession. The Parkers responded that the Engels' suit
was barred by the 30-year statute of limitations as of 2004, 30 years
after the Engels met the requirements for adverse possession in
1974.
In addition, the Parkers argued that the
“owner-in-possession” exception to the statute of
limitations – which protects claims “by any person who is in
possession of the real estate involved as owner at the time the action
is commenced” – did not apply because the Parkers took
possession of the disputed land before Engel commenced the adverse
possession suit.
However, the circuit court ruled in favor of the Engels, and the
District III Wisconsin Court of Appeals affirmed in O’Donnell
v. Parker, 2011AP25 (Jan. 4,
2012).
Citing two Wisconsin Supreme Court cases, the appeals court explained
that “[n]either case requires the party who initially adversely
possessed land for the necessary period of time to continue
‘adversely’ possessing the disputed property to benefit from
the exception.”
In an opinion by Presiding Judge Michael Hoover, the three-judge panel
noted that a contrary ruling would be illogical, “because
landowners sometimes unknowingly adversely possess abutting land,”
and would not know to file an adverse possession claim until a dispute
arose.