Who Can Claim Property Based on Adverse Possession in Wisconsin?

Imagine that you live in a suburban home along the Wisconsin River with a nice lawn behind it. You notice that a neighbor has planted flowers on your "side" of the property line. At first, you might not think much about this. But in Wisconsin, like in other states, such a seemingly harmless action could lead to a permanent claim over "your" property (or at least that patch of it) by your neighbor, under a legal doctrine known as adverse possession.

To make sure that all of your Wisconsin land remains yours, it makes sense to keep an eye on your property lines. Moreover, you yourself might eventually want to assert a claim for adverse possession against another individual's land. Either way, you'll need to learn about adverse possession laws in the Badger State.

How Adverse Possession Laws Work

Adverse possession is a legal concept that allows a trespasser—sometimes a stranger, but more often the person living next door—to gain legal title over your land. The concept first developed in early modern Europe. Wisconsin state courts continue to enforce such a result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for so long that to make that person leave would seem unjust or create hardship.

Of course, there are legal hurdles to clear before someone can claim a piece of Wisconsin land using this legal theory. For one, the burden of proof to establish a claim of adverse possession is on the trespasser. If you hold legal title to a piece of land, you are its presumed owner until and unless the adverse possessor can come up with enough compelling evidence and arguments to convince a judge to grant ownership over all or a portion of it.

Adverse possession should not be confused with having an easement to use another person's property—for example, when a neighbor has a legal right to use your driveway to access their property. Easements involve shared rights with others in pieces of property, whereas adverse possession results in an actual shift in title, and the corresponding right to exclude others from the property. Read more about easements.

Adverse possession is also different from many other types of disputes that might develop with a neighbor, such as arguments about tree branches or noise. Adverse possession goes to the heart of your property rights.

Wisconsin's Requirements for Adverse Possession

Adverse possession in Wisconsin is controlled by a combination of statutes; specifically, Wis. Stat. § 893.25 - Wis. Stat. § 893.29; as well as common law. (Common law is law that is developed by judges in addressing individual cases over the years.)

A Wisconsin trespasser's possession must, in order to support an adverse possession claim, be:

• open and notorious (using the property as the real owner would, without hiding the occupancy)
• visible
• exclusive (in the possession of the trespasser alone)
• actual (exercising control over the property; the statute requires that this be either done by protecting it with a substantial enclosure or cultivating or improving it)
• hostile (against the right of the true owner and without permission), and
• continuous for the statutory period (normally 20 years in Wisconsin under Wis. Stat. Ann. § 893.25, with a couple of exceptions).

Imagine, for example, that Morgan and Ben are neighbors in Milwaukee. Without a wall between their properties, Morgan plants trees on what is technically Ben's land. Eventually, Morgan builds an entire porch there. Ben says nothing. The years pass—20 years, in fact. Under Wisconsin's adverse possession framework, Morgan will likely be successful in establishing an ownership claim to that portion of Ben's property. Note that Morgan won't be able to take over all of Ben's land—only the portion upon which he constructed the porch and which he actively used for those 20 years. Wisconsin courts would be hesitant to eject Morgan and his porch after so much time has passed.

Adverse Possession Under Color of Title and With Payment of Taxes

As discussed, Wis. Stat. Ann. § 893.25 provides for a 20-year limitation period before a trespasser can gain adverse possession over a piece of real property.

Under Wis. Stat Ann § 893.26, a trespasser need show only ten years continuous possession if they had good faith "color of title." This means that the trespasser appeared to have either a property deed or court judgment in the public records, indicating actual ownership of the property. In addition, the "trespasser" must prove that they occupied the property, for example by having built improvements or an enclosure, or gathered timber there.

There's one more possibility, though it's even harder to prove, under Wis. Stat. Ann. § 893.27. This says that a trespasser need show only seven years of continuous possession upon proving that the possession was not only "under color of title" but also with full payment of all real estate taxes levied against the property over those seven years.

Cutting Off Adverse Possession Claim in Wisconsin With Action to Quiet Title

What should you do if you spot a trespasser or a neighbor planting trees or otherwise encroaching on your Wisconsin land? Your first move, of course, is to speak with the person and ask them to remove all property and structures from, and refrain from entering onto, your property. If it's an innocent mistake, the person is likely to comply.

If the trespass continues, or if you get into a dispute over ownership, you will probably want to consult a lawyer and bring an action to quiet title. This is a legal method for determining the rightful owner of land. You'd be asking a Wisconsin state court judge (specifically a Wisconsin Circuit Court judge) to issue an order declaring that you, and not the trespasser, are the true owner and title holder of the property. This order is particularly helpful if you are seeking to sell your Wisconsin property, and you need to reassure potential buyers that they'll be getting what they think they're paying for.

No Adverse Possession Claims Possible Against Government Land

Under Wis. Stat. Ann. § 893.29, no land that is held by Wisconsin's state or local government entities is subject to adverse possession actions. So, if you live next to an unused or abandoned state park in Madison, you won't be able to "annex" a larger yard by building a shed and waiting 20 years. Wisconsin's government always has first priority when it comes to ownership.