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 of this. But in Wisconsin, like other states, this 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.
For most Americans and most Wisconsinites, their home is their single most valuable asset. 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 may 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.
Adverse possession is a legal concept that allows a trespasser—sometimes a stranger, but more often a the person living right next door—to gain legal title over someone else's land. The concept first developed in early modern Europe.
Wisconsin state courts continue to enforce a fair 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. In other words, if a trespasser spends enough time caring for a piece of property that the true owner has neglected or even forgotten about, and the true owner makes no objection, a court might award ownership to the trespasser.
Of course, there are some hurdles to clear before someone can claim a piece of your 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 his or her 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 neighbor disputes that might develop with a Wisconsin neighbor, such as arguments about tree branches or noise. Adverse possession goes to the heart of your property rights.
Adverse possession in Wisconsin is controlled by a combination of statutes; specifically, Wis. Stat. § 893.25 - Wis. Stat. § 893.29; and common law. Common law is law that is developed by judges over generations.
A trespasser’s possession must be (i) hostile (against the right of the true owner and without permission); (ii) actual (exercising control over the property); (iii) exclusive (in the possession of the trespasser alone); (iv) open and notorious (using the property as the real owner would, without hiding the occupancy); and (v) continuous for the statutory period (which is generally 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 he 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.
As discussed above, Wis. Stat. Ann. § 893.25 generally provides for a 20-year limitation period before a trespasser can gain adverse possession over a piece of real property. However, under Wis. Stat. Ann. § 893.27, a trespasser need only show seven years of continuous possession if he or she can prove that the possession was "under color of title" and with full payment of real estate taxes over those seven years. "Color of title" means that the trespasser appeared to have good title, either through a deed or through public records, indicating the trespasser's actual ownership of the property. And the trespasser must also show payment of all real estate taxes levied against the property over those seven years in order to benefit from the shorter limitations period.
What should you do if you spot a trespasser or a neighbor surreptitiously planting trees or otherwise encroaching on your Wisconsin land? Your first move, of course, is to speak with the person and ask that he or she 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, you may want to consult a lawyer and bring an action to quiet title. This is a legal method for determining the rightful owner of land.
In an action to quiet title, you’re 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 land. This order is particularly helpful if you are seeking to sell your property, and you need to reassure potential buyers that they'll be getting what they think they're paying for.
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.