Accession Law LLC


Dec 7, 2015

2 pending bills would (almost) abolish adverse possession

What is "adverse possession?"  Simply put, when a person has acted like the owner of real estate for the requisite period of time within certain parameters, that person becomes the owner of the real estate.  A person who "squats" for 20 years thereby owns the parcel.  How does this come about?

A common scenario where this happens is as follows: A fence was installed on crop land years ago.  Since that time, the fields have been sold to different parties who have since sold the lands again and again.  All parties have behaved as though the fence line was the property line.  However, an accurate survey now discloses that the fence line was not installed exactly on the property line.  Through adverse possession, the fence line may have become the property line despite whatever is written in the deeds.

The elements of adverse possession include the following:

Pursuant to WIS. STAT. § 893.25(2)(a) and (b), real estate is possessed adversely only if “the person possessing it, in connection with his or her predecessors in interest, is in actual continued occupation under claim of title, exclusive of any other right,” and “[o]nly to the extent that it is actually occupied.” In addition, the property must be “protected by a substantial enclosure” or “usually cultivated or improved.” Pursuant to § 893.25(1), the adverse possession must be uninterrupted for twenty years. In order to constitute adverse possession, “the use of the land must be open, notorious, visible, exclusive, hostile and continuous, such as would apprise a reasonably diligent landowner and the public that the possessor claims the land as his own.” “Hostile” in this context does not mean a deliberate and unfriendly animus; rather, the law presumes the element of hostile intent if the other requirements of open, notorious, continuous, and exclusive use are satisfied. “Both ... the fact of possession and its real adverse character” must be sufficiently open and obvious to “apprize the true owner ... in the exercise of reasonable diligence of the fact and of an intention to usurp the possession of that which in law is his own ....” The size and nature of the disputed area are relevant in deciding if the use is sufficient to apprise the true owner of an adverse claim. No. 2012AP1869 6 The party seeking to claim title by adverse possession bears the burden of proving the elements by clear and positive evidence. The evidence must be strictly construed against the claimant and all reasonable presumptions must be made in favor of the true owner. One of these presumptions is that “actual possession is subordinate to the right of [the true] owner.” Steuck Living Trust v. Easley, 2010 WI App 74, ¶¶11-15, 325 Wis. 2d 455, 785 N.W.2d 631.  

The law relating to adverse possession has been established in Wisconsin at common law since the state's formation, and statutes governing this transfer of land have existed since 1931.  There is a large and relatively settled body of law on the subject.

Until now.....

Two bills currently pending (as of 12/1/2015) in the Wisconsin legislature seek to modify adverse possession law.  One of the bills, Senate Bill 344, would effectively abolish adverse possession.  Why?  It appears that the bills proponents are opposed to the idea that the tort of trespass, when committed for long enough, becomes the right to ownership.  Admittedly, this law is strange in that it converts something which is actionable (trespass) into something that is valuable (ownership).

However, the law resulted from the fact that we need some way to address these inevitable situations.  Note, with more accurate surveying, these claims may become less "necessary" over time.  However, there are untold numbers of parcels where the various parties understand the situation to be different than an accurate survey would reveal.  Why should the survey govern rather than the understanding of all parties involved?

The problem with the current proposed changes is that there is no indication as to how these claims will be resolved.  I personally would not be opposed to abolition of adverse possession provided that there is another adequate mechanism to resolve vested rights in property that do not appear of record.