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  • Subjective Intent Relevant When Determining Title by Adverse Possession

    Joe Forward

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    Aug. 12, 2014 – A couple who tried to obtain title to lakefront property by adverse possession recently lost at the Wisconsin Supreme Court, which ruled that “subjective intent” was relevant in rebutting the presumption that their possession was hostile.

    Richard and Susan Wilcox had argued that they met the elements of adverse possession to obtain title to a 25-foot strip of land that separated their property from the shores of Lake Delton. Obtaining title would give them complete lake frontage.

    But in Wilcox v. Estate of Ralph Hines, 2014 WI 60 (July 11, 2014), a Wisconsin Supreme Court majority (6-1) ruled that the claim was not “hostile,” because the prior owners had asked permission to use the land from the entity they thought owned it.

    A state appeals court had ruled that asking permission from a non-owner does not defeat a claim of adverse possession. The appeals court said “subjective intent” is not relevant so long as the possessor’s use would “appear” to be hostile to a true owner.

    But the supreme court majority reversed: “We agree with the titleholders and hold that evidence regarding a possessor’s subjective intent to claim title may be relevant in an adverse possession claim to rebut the presumption of hostility that arises when all other elements of adverse possession are satisfied,” wrote Justice Michael Gableman.

    Under Wisconsin’s adverse possession statute, Wis. Stat. section 893.25, real estate is possessed adversely only if the person possessing it “is in actual continued occupation under a claim of title, exclusive of any other right,” for 20 uninterrupted years.

    Adverse possessors may “tack” the time of possession to predecessors-in-interest, so long as the predecessor met the adverse possession elements while in possession. The Wilcoxes said they met all the elements, when tacked with their predecessors.

    But when determining whether the Wilcoxes satisfied the “claim of title” or “hostility” element, the supreme court majority ruled that the claim failed – the prior owners believed they had permission, even if they did not have permission from the true owner.

    The Transfer Trail

    Richard and Susan Wilcox purchased property near Lake Delton in 2002. Bordering the property was a 25-foot strip of land along the lake. To reach the lake, the Wilcoxes had to cross the 25-foot parcel, which they did not own. It belonged to different two estates.

    The estates of William Newman and Ralph Hines owned the lakefront strip. Newman was the original owner of the Wilcox property and the lakefront strip. In the 1930s, Newman transferred part of the lakefront strip and the Wilcox property to Hines.

    In subsequent transfers, owners obtained the Wilcox property but never obtained title to the lakefront strip. Hines and Newman retained ownership, but granted the right to foot traffic across the 25-foot strip in order for Wilcox property owners to reach the lake.

    When Ronald and Mary Soma purchased the Wilcox property in 1963, the predecessor-in-interest informed them that the property did not include the 25-foot strip but they had a right to foot traffic across it. They never knew who owned the lakefront strip.

    Ultimately, Hines and Wilcox passed away, and their ownership interests in the lakefront strip passed to their estates. Meanwhile, the Somas started using the lakefront strip.

    They knew they did not own it, but to the casual observer, it would seem so. They planted trees and flowers, cleared undergrowth, maintained the lawn, and repaired the shoreline. They also posted a no trespassing sign on the lakefront strip.

    They did not ask permission to do all this, perhaps because they did not know who to ask. However, at some point, they mistakenly believed that Wisconsin Ducks owned the lakefront strip. Wisconsin Ducks is an outfit that gives boat tours on Lake Delton.

    The Somas granted an easement on their property for Wisconsin Ducks to transport equipment to the lakefront strip. The Wisconsin Ducks made improvements to the lakefront strip by clearing trees and placing rocks there. The Somas did not object.

    The Somas continued to improve the lakefront strip, but they asked Wisconsin Ducks for permission to do it, even though Wisconsin Ducks did not own the land. In 2002, the Somas sold their property to the Wilcoxes, the plaintiffs in the lawsuit.

    The Somas informed the Wilcoxes that the lakefront strip was not part of the sale, but they had a right of foot traffic across it. Like the Somas, the Wilcoxes maintained and developed the lakefront strip. In 2011, they filed an adverse possession claim.

    Majority Rules

    The Sauk County Circuit Court denied the claim, but the appeals court reversed, concluding the Wilcoxes had satisfied all the elements of adverse possession. Recognizing the issue as a novel one, the supreme court clarified the law.

    A presumption of hostile intent applies when all other elements of adverse possession are satisfied, the majority explained, but the presumption may be rebutted with evidence that demonstrates a possessor “lacked the subjective intent to claim title.”

    The Somas had asked for permission from a non-owner they mistakenly believed owned the lakefront strip. “A request for permission is relevant under the circumstances regardless of whether it is sought from the true owner,” Gableman wrote.

    In other words, the majority ruled that a “claim of title” requires the adverse possessor to believe the possession and occupation is without permission from anyone.

    The appeals court had ruled that “subjective intent” does not matter if the true owner did not grant permission. Chief Justice Shirley Abrahamson agreed with the appeals court.

    In a short dissent, she states: “The majority opinion seems to introduce a minefield of blanket pronouncements and unanswered questions into the varied fact scenarios that adverse possession cases provide,” the chief justice wrote.