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Published: February 1, 2012
Author: Mitchell Olson
The Wisconsin Court Appeals recently clarified an important issue as to the length of time during which a party claiming adverse possession must bring the claim before it expires by law. If the claimant is “in possession” of the land in question, the 30 year statute of limitations does not apply to bar the claim.
The case of Engel v. Parker, 2011 AP 25, presents a common fence-line dispute in rural Wisconsin. At issue is a strip of land, with a width of 15 to 23 feet, running the entire length (quarter mile) of 2 adjacent 40 acre parcels. The Engel family had held title to their 40 since 1954. An existing barb wire fence established the boundary with the neighboring 40 and it was undisputed that adverse possession by Engels continued from 1954 to 1974 which satisfied the 20 year statutory period. Engels then leased the land from 1977 to 2008 to a farmer who cultivated to within 4-5 feet of the fence.
The adjacent parcel was purchased by Parker in 2003 and a 2006 survey identified the fence-line (now deteriorating but still present in part) as an encroachment. The Parkers installed a new fence in 2008 on the record title boundary. Engel responded by filing an adverse possession action seeking title to the land up to the fence line.
Wisconsin Statute 893.33(2), (5) imposes a 30 year period to bring an adverse possession action. Because Engels had established adverse possession in 1974, Parkers contended the 30 year period to bring a claim expired in 2004. Parkers contended that Engels could have recorded with the register of deeds notice of their claim and thereby preserve same, but did not.
However, Wisconsin recognizes an exception to the 30 year statute for “owners in possession” of the real estate at the time the action is commenced. Engels claimed they qualified as owners in possession. Parkers responded that Engels could not be in possession at the time the lawsuit was commenced because Parkers had erected a new fence which excluded the Engels.
The Court of Appeals rejected Parkers’ arguments and found in favor of Engels. The Court emphasized that once title is secured by adverse possession, the possessor need not continuously waive the red flag of hostility forever. That claimant, after the 20 year period, is presumed to be in possession of the land. If another party enters the land, such as the original record title owner, that entry is subordinate to the legal title of the claimant until such time as a new adverse possession is established.
This ruling clarifies prior caselaw and generally favors adverse possession claimants. Nevertheless, any adverse possession claimant must be cautious when assessing his/her claim and whether it is timely.
For more information about real estate and adverse possession law in Wisconsin, contact Mitchell Olson at 608-283-6724 or molson@axley.com.
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