Adverse possession is a deep-rooted legal doctrine that generally provides if someone uses another person’s property in a continuous, open, and notorious manner for at least 20 years, that person can obtain ownership to that property. I think the best example is when a fence divides two properties and if that fence has been in the exact same location for at least 20 years, the fence can become the property line no matter what anyone’s deed or survey states. Likewise, if two fields have no fence between them, and rather each farmer just farms up to the same line, then after 20 years that occupation line can become the property line.
Recently, the Wisconsin Legislature looked to change this law. Initially, a bill was introduced that would have allowed adverse possession in only two very limited instances. One would have been where the owner of the property (based on the deed) could not be found such as a circumstance where the owner died many years ago and no heirs can be located. The second would have allowed someone to claim title by adverse possession only if he had constructed a building or structure on the property he is trying to claim.
There was a fair amount of opposition to this proposed bill, so the legislature came up with an alternative that became law. This new law, found at 893.305 of the Wisconsin Statues, allows someone who believes a neighbor is adversely possessing his land to file an affidavit. Generally, what the owner of the property (according to a deed) can do is file an affidavit with the register of deeds office in the county where the property is located along with a survey of his property that has been prepared by a professional land surveyor within the last five years. An owner then has to give notice to his neighbor that he filed the affidavit, which is called an “Affidavit of Interruption”.
The Affidavit of Interruption essentially starts a new 20-year period and ends the current period. For example, if your neighbor has adversely possessed your land for 19 years and 11 months, an Affidavit of Interruption can be filed to stop that time period and start a new 20 year time period. Then, before that new 20 year time period has run out and if the adverse possession has continued, the owner can file a new Affidavit of Interruption starting a new 20 year time period.
If, however, your neighbor has already adversely possessed your land for at least 20 years, this Affidavit of Interruption can still be filed, but your neighbor can still make an adverse possession claim against your property because he already made it the full 20years. For example, if you recently found out that the fence line between you and the neighbor you don’t like is 10feet onto your side of the property line (at least according to the deed and a surveyor) and if that fence line has been there for 100 years (or at least 20), this new law does not help you. It does not matter either if you or your neighbor has owned your respective properties for less than 20 years. You can only hope your neighbor is not familiar with adverse possession.
As with any law, there are exceptions and nuances, so if you think you have an adverse possession claim or if someone is adversely possessing your land, seek knowledgeable legal counsel.
Halbach is a partner in the ag law firm of Twohig Rietbrock Schneider & Halbach S.C.Call Halbach at 920-849-4999.