The legal doctrine of adverse possession allows a person or entity to assume ownership of another’s property if that person or entity adversely possessed the land and certain conditions have been met. One might think that this old common-law doctrine is no longer relevant. Yet, adverse possession claims continue to cause numerous real estate disputes in Wisconsin and elsewhere.
What Is Adverse Possession?
A typical adverse possession case involves a fence. Take this situation as an example: one farmer accidentally builds a fence 12 inches over the property line of his neighbor’s land. After a certain period, usually 20 years, the farmer who built the fence could obtain title to those 12 inches under the law of adverse possession. This 20-year period is shortened to 10 years if the claim is supported by a written instrument that transferred the property to the adverse possessor. It is shortened to 7 years if supported by a written instrument and the adverse possessor had been paying the real estate taxes during that period.
Of course, nothing is simple, and actually meeting the standard for adverse possession requires the claimant to prove that the use of the land was exclusive, uninterrupted, continuous and hostile. Moreover, there must be open and known occupancy, and the claimant must meet all the standards together. Requirements like these make it possible for landowners to fight adverse possession claims by arguing that the person claiming title under adverse possession did not meet the standard.
Defending Against an Adverse Possession Claim
The most common and least expensive way to defend against an adverse possession claim is to remove the hostile element from the mix. (In this context, hostile does not mean that the fence builder described above was confrontational or unpleasant. It just means that he or she did not have permission to build the fence on the other owner’s land.) The landowner can do this by giving the fence builder permission to use the 12 inches of land as it had been used since the building of the fence. The permission should be in writing, and ideally recorded. The permission can be renewed or even revoked at a later date.
Another way to fight an adverse possession claim is to file an action to quiet title. Such an action requires the court to determine the true boundaries of the two properties. This can be more costly and time-consuming than simply granting to the adverse possessor written permission to use the land.
A New Way to Push Back Against Wisconsin Adverse Possession Claims
The Wisconsin legislature recently enacted a third way to respond to an anticipated adverse possession claim. Called an Affidavit of Interruption, this approach allows the landowner with title to the land to delay an adverse possession claim by resetting the clock. In the case of the mistaken fence builder, for example, the owner of the property encroached upon by the fence could file an affidavit of interruption 19 years after the fence was built. This would prevent the fence builder from taking title to the land at year 20 and add 20 more years to the time required for the fence builder to secure title through adverse possession.
In addition, the new law prohibits state and local agencies from acquiring title to the private property of another individual or entity.
What the Changes Mean to Wisconsin Landowners
It is not yet clear how these changes will affect the legal landscape of adverse possession. The requirements for an Affidavit of Interruption may seem complicated. However, the new process does have the benefit of delaying an adverse possessor’s ability to lay claim to the title. If nothing else, the new law will reduce the number of such claims heard in the courts. It also strengthens the status of government land by preventing adverse possession claims against the government owner.
What if I Have Questions About an Adverse Possession Claim?
Like many legal concepts, adverse possession claims are more complex than can be described in a blog post. If you have questions about adverse possession either as a possessor or a title holder, it is important to consult a real estate attorney to learn how the changes apply to your specific situation.