When property disputes come up, one issue that is always raised is whether or not there is a claim for adverse possession.
The concept of adverse possession comes from the common law concept that if someone utilizes, cares for, and treats property as his/her own for a long enough period of time, then they own that land. The point of this rule is not to allow sneaky neighbors to steal a little land, but rather is a practical solution to sometimes uncertain property lines.
The rule has been codified in Wis. Stat. § 893.25 and sets forth the following:
(1) An action for the recovery or the possession of real estate and a defense or counterclaim based on title to real estate are barred by uninterrupted adverse possession of 20 years, except as provided by s. 893.14 and 893.29. A person who, in connection with his or her predecessors in interest, is in uninterrupted adverse possession of real estate for 20 years, except as provided by s. 893.29, may commence an action to establish title under ch. 841.
(2) Real estate is possessed adversely under this section:
(a) 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
(b) Only to the extent that it is actually occupied and:
1. Protected by a substantial enclosure; or
2. Usually cultivated or improved.
The Wisconsin Court of appeals recently explained how strict the requirement for exclusive use (not just continuous use) is to establishing an adverse possession claim when looking at Wis. Stat. § 893.25 (adverse possession of government land). When the Plaintiff argued that he had the right because he had maintained the property, the Court disregarded that argument,
We conclude that this argument fails because, regardless of maintenance and improvement, Vaneman must establish exclusive use, which he has failed to do.
Vanemen v. Reed, No. 2011AP1465. Nov. 1, 2012.
Like any complex legal concept, the facts of each case will vary significantly. If you believe that you may have a claim for adverse possession you need to talk with an attorney, but remember that you need to possess the property openly and exclusively for the statute to apply.
Sean M. Sweeney is a shareholder at Halling & Cayo. His practice focuses on business litigation, civil litigation, stock broker fraud, business transnational law, and real estate law. Sean represents investors, small business owners, and companies locally in Wisconsin, all over the United States, as well as internationally with clients in Canada, Germany, and Australia.
Email Sean: [email protected]