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February 4, 2020
Most farms have one or more easements running through them. A neighbor may have an easement to use a driveway or lane to access his landlocked parcel. A utility company may have an easement for a large underground natural gas pipeline or overhead power lines. A neighboring farmer may have the right to run surface water through a drainage ditch or tile line on another farmer’s property. Many of these easements do not have an expiration date.
However, Section 893.33 of the Wisconsin Statutes can cause an easement to be terminated even though the easement states it cannot be terminated. The law provides that if an easement was initially recorded on or before July 1, 1980, that easement is good for at least 60 years. Because of a law change in 1980, if an easement was initially recorded on or after July 1, 1980, that easement is good for only 40 years. Any easement can be extended for another 40 years so long as the easement is re-recorded or referenced in some other document recorded at the county register of deeds office.
For example, if a perpetual easement was initially recorded at the register of deeds office on July 10, 1970, and is never referenced again in a recorded document, the easement will terminate on July 10, 2030. However, if the easement is re-recorded or referenced in a recorded deed prior to July 10, 2030, that easement will be good for at least the next 40 years (and then, if re-recorded again or referenced in a recorded deed, a new 40 years starts from that document, and so on).
Further, if a perpetual easement was initially recorded at the register of deeds office on July 10, 1980, and is never referenced again in a recorded document, that easement will terminate on July 10, 2020. Likewise, if the easement is re-recorded or referenced in a recorded deed prior to July 10, 2020, that will extend the easement for at least another 40 years, as noted previously.
The purpose of this law is that when you are selling your property and a title company is searching the records of the property at the register of deeds office, the title company does not always have to search back to whenever the state of Wisconsin conveyed the property to the first person to own it. It makes that person’s job much simpler.
It should be noted that Section 893.28 of the Wisconsin Statutes has a special exception for utility providers. That law provides that even if there is not a written easement, if the landowner’s property has been used for at least 10 years to furnish “telegraph or telecommunications service or transmit heat, power or electric current to the public or for public purposes,” that easement can continue forever. Basically, utilities do not have to follow Section 893.33 because they are serving the greater public good.
Not all easements have to be in writing. One kind that does not have to be in writing is known as a prescriptive easement, which provides that if a person uses someone else’s land without permission, and openly and notoriously to access the land, then after 20 years of doing that, he or she has an easement or permanent right to keep doing that.
The other is an easement by necessity, which can be created when a landowner is landlocked. In such a case, if the landowner can go back to a point in history when his or her parcel was owned by an adjacent landowner who has road access, then he or she may be able to obtain an easement from that current landowner. Prescriptive easements and easements by necessity are not necessarily affected by Section 893.33.
If you have a written easement to use someone else’s property, you should consider reviewing it since beginning July 1, 2020, easements created on or after July 1, 1980, may start terminating — even though they have no termination date or state they are to run forever! Re-recording an easement is simple to do.Halbach is a partner in the agricultural law firm of Twohig, Rietbrock, Schneider and Halbach. Call him at 920-849-4999.
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