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  • WisBar News
    January
    05
    2012

    Owner-in-possession exception defeats claim to adversely possessed property

    Joe Forward
    Legal Writer

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    Jan. 5, 2012 – A state appeals court recently clarified what happens when a property owner acquires disputed property by adverse possession but is not "in possession" of it when an adverse possession claim is commenced.

    Owner-in-possession exception defeats claim to adversely possessed property

    Adverse possessors who do not commence a property claim or notice within the 30-year statute of limitations period, and subsequently lose possession of the property, can still benefit from the “owner-in-possession” exception.

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    Owner-in-possession exception defeats 
claim to adversely possessed 
property Jan. 5, 2012 – A state appeals court recently clarified what happens when a property owner acquires disputed property by adverse possession but is not “in possession” of it when an adverse possession claim is commenced.

    Specifically, the appeals court ruled that the “owner-in-possession exception” will apply to trump a statute of limitations defense even if the adverse possessor is not actually in possession of the disputed land when a property suit is filed.

    Under Wis. Stat. sections 893.33, claims and defenses to property interests are barred unless commenced within 30 years of the event giving rise to the claim.

    That means adverse possessors have 30 years to commence an action, or file notice, to claim adversely possessed property. However, an exception exists.

    Section 893.33(5) states, in pertinent part, that “[the statute of limitations] does not apply to an action commenced or any defense or counterclaim asserted, by any person who is in possession of the real estate involved as owner at the time the action is commenced.”

    In 2003, Steven and Judy Parker (the Parkers) bought a 40-acre parcel of land bordering 40 acres owned by siblings Ronald Engel and Sandra O’Donnell (the Engels). The Engels acquired the land from their parents, who purchased it in 1954.

    As of 1974 (20 years later), the Engels adversely possessed a 15- to 23-foot wide strip of land jutting into the recorded property now owned by the Parkers, which the Parkers did not dispute. The Engel family had long ago placed a fence, knowing the correct boundary line or not, to lay claim.

    However, after surveying the land in 2006, the Parkers erected survey stakes on the recorded property boundary, told a local farmer who leased land from the Engels to stop farming on their side of the stakes, and eventually installed a new fence along the recorded boundary line.

    The Engels filed suit in 2009, claiming title to the disputed land by adverse possession. The Parkers responded that the Engels' suit was barred by the 30-year statute of limitations as of 2004, 30 years after the Engels met the requirements for adverse possession in 1974.

    In addition, the Parkers argued that the “owner-in-possession” exception to the statute of limitations – which protects claims “by any person who is in possession of the real estate involved as owner at the time the action is commenced” – did not apply because the Parkers took possession of the disputed land before Engel commenced the adverse possession suit.

    However, the circuit court ruled in favor of the Engels, and the District III Wisconsin Court of Appeals affirmed in O’Donnell v. Parker, 2011AP25 (Jan. 4, 2012).

    Citing two Wisconsin Supreme Court cases, the appeals court explained that “[n]either case requires the party who initially adversely possessed land for the necessary period of time to continue ‘adversely’ possessing the disputed property to benefit from the exception.”

    In an opinion by Presiding Judge Michael Hoover, the three-judge panel noted that a contrary ruling would be illogical, “because landowners sometimes unknowingly adversely possess abutting land,” and would not know to file an adverse possession claim until a dispute arose.