Real Property Probate and Trust Law Blog: Dealing with the Expiring Perpetual Easement Problem:

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  • Real Property Probate and Trust Law Blog
    February
    23
    2021

    Dealing with the Expiring Perpetual Easement Problem

    Jessica J. Shrestha

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    No private easement is permanent in Wisconsin, says Jessica Shrestha, even "perpetual" ones. Learn about helping your client's easement issues via Wis. Stat. section 893.33.
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    Easements can and do expire in Wisconsin as a matter of law. Even if they are “perpetual.” Even if they are in use. Even if they provide access.

    Consider This Scenario

    Jill owns Parcel A on First Street. The neighboring parcel on First Street, Parcel B, is owned by Frank. Jill’s driveway is located primarily on Parcel B, pursuant to a perpetual driveway easement. The driveway is the only means of accessing Jill’s garage, located behind her house.

    The driveway easement was created when Frank subdivided his property and sold Parcel A to Jill in 1978. Jill and Frank are friendly, and have never had any dispute as to the driveway.

    On Oct. 1, 2020, Frank sells Parcel B to Eric “subject to easements and restrictions of record,” but without any specific reference to Jill’s easement. Jill continues to reside on Parcel A using her driveway on Parcel B. A few months later, Eric does some research and decides he wants to get rid of Jill’s driveway.

    Jill has a problem.

    Applying Wis. Stat. Section 893.33

    Wis. Stat.section 893.33, for better or for worse, acts to clean up title by eliminating old interests as a matter of law.

    Jessica J. Shrestha Jessica J. Shrestha, U.W. 2009, is a shareholder with Wheeler, Van Sickle & Anderson, S.C. in Madison. She practices in real property and environmental law.

    The statute generally provides that, if notice of a real estate interest does not appear on the record (recorded in the office of the register of deeds) within a certain period of time, the interest terminates.

    As described in more detail below, Jill’s interest terminated when Eric purchased Parcel B in 2020, because Jill’s interest was not specifically re-recorded within 40 years of that purchase.

    In fact, the original grant of easement in 1978 was the only recorded instrument expressly referencing the easement. The easement expires even though Eric knew Jill had a driveway easement and even though Jill actively used the easement.1

    Limitations

    Limitation periods:

    • Recorded easements and restrictive covenants – 40 years.2

    • Other recorded instruments – 30 years.3

    • Prescriptive easements and other unrecorded claims – 30 years.4

    Limitation only applies where there is a purchaser for a valuable consideration. The statute is limited, in that it only acts to terminate property interests if, after the applicable time period has passed, there is a purchaser for a valuable consideration.

    In the example above, even though Jill’s easement could have expired as early as July 1, 2020,5 it did not actually expire until Eric purchased the property for valuable consideration on Oct. 1, 2020.

    Had Jill adequately re-recorded her interest prior to Eric’s purchase, her easement would have been preserved. Likewise, had Frank gifted Parcel B to his daughter Whitney rather than selling to Frank, Jill’s easement would not have expired, because there was no purchaser for a valuable consideration.

    Exceptions to Section 893.33

    The statute does not apply to:

    • owners in possession, including owners by adverse possession;6

    • recorded interests of various utilities and railroads;7

    • recorded interests of the state or a political subdivision or a municipal corporation of the state;8 and

    • conservation easements.9

    What Constitutes Re-Recording or Notice

    Under section 893.33, an interest is deemed to have been preserved or saved from expiration if the claim or defense based on the interest is “expressly referenced” or if notice of the instrument is set forth in the record. Under section 893.33(2), the notice has to include:

    • the name of the claimant;

    • a statement of the claims made;

    • a description of the real estate affected; and

    • a description of the instrument, transaction, or event on which the claim or defense is founded.

      • If the claim or defense is founded on a recorded instrument, the date the instrument was recorded, the document number of the instrument and, if the instrument is assigned a volume and page number, the volume and page number where the instrument is recorded.

    To determine if an easement has expired under 893.33, a title examination is usually required, to see if any such express reference or notice can be located.

    Examination of both the burdened and benefited parcels is relevant and may be necessary. In our example above, no such express reference or notice existed within 40 years of Eric’s purchase in either chain of title, because the original instrument was recorded in 1978 and the reference to “easements of record” in Eric’s deed would not satisfy the statutory requirements.

    Related: Application of Wis. Stat. section 706.09: Although this article focuses on the application of section 893.33, attorneys should also be aware of section 706.09, and its related impacts. Sometimes called the “Innocent Purchaser Statute,” this statute protects purchasers for value from claims and interests of which the purchaser had no notice. “Notice” under this statute can be either record notice or affirmative notice (actual or constructive) from use or occupancy of the real estate at the time of the purchase.

    With respect to easement interests, a purchaser is deemed to have notice from the real estate record if a recorded instrument provides affirmative and express notice of the easement within 30 years prior to the purchase.

    In the above example, Eric did not have recorded notice, because no such instrument was recorded in the prior 30 years. However, Eric had affirmative notice under section 706.09, because he would have seen the driveway and was aware of Jill’s use.

    Specifically, section 706.09(2)(a) provides that a purchaser for value has affirmative notice of a use or occupancy where

    due and diligent inquiry of persons using or occupying such real estate would, under the circumstances, reasonably have disclosed such prior outstanding interest; nor unless such use or occupancy is actual, visible, open, and notorious.

    This affirmative notice would not have saved Jill’s driveway easement from expiration under section 893.33, but it is important to be aware of the differences when evaluating possible issues and working to preserve your clients’ easements under both statutes.

    Preserving Client Easements and Other Interests

    To preserve client easements and other real estate interests, a form of notice should be recorded in the office of the register of deeds for the appropriate county.

    Where the instrument was previously recorded, it can be effectively re-recorded by recording a document that includes adequate information to identify the instrument under 893.33(2). Best practice is to attach to the notice document a copy of the previously recorded instrument including the recording stamp.

    Where the instrument was not previously recorded or where the interest is unwritten (i.e., prescriptive easement), a thorough description of the claim will be required, including the events on which it is based, dates, names, and property descriptions.

    To aid in this process, two examples are linked below for reference. These examples are intended to preserve interests under both section 893.33 and section 706.09. Attorneys can adapt these examples for their own use or create their own format.

    In the examples, my client signs the notice. There is no express requirement in section 893.33 that the present interest holder sign the notice – but it seems prudent to do so, in the event signature is deemed required by law, required for recording under Wis. Stat. section 706.05, or otherwise required by the register of deeds.

    I advise my clients that they will need to re-record at least every 30 years, even though recorded easements have a 40-year limitation period under section 893.33. This is because other issues (lack of notice under section 706.09 or prescriptive rights) could result in a shorter 30-year limitation period.

    Example A: This example could be used to re-record a basic easement instrument where there is no other or related issue.

    Example B: This example includes language that could be used for several different scenarios. First, the example describes an easement that was granted in a deed of conveyance rather than in a separate instrument. The example further assumes the deed was given in satisfaction of a land contract. Depending on how the easement was originally created, the language describing that interest will need to be adapted.

    Example B also addresses the very common situation where the location of an access drive is not the exact location described in the recorded easement. In this situation, the easement holder may have a prescriptive right to use the drive in its present location – or perhaps there is a claim for an implied easement, or reformation. Whatever the claim might be, it needs to be preserved in addition to preserving the deeded easement. In addition to considering the location of the easement, attorneys should consider whether the use has been expanded, extended to other properties, or any other issue that might not match the original instrument.

    Because this example has the client reciting facts in support of its claim beyond the recording information for the original instrument, I treat the instrument as an affidavit, and include a statement that it is made under oath. Ideally, this instrument may later help the client in proving its prescriptive easement claim.

    What Else Can Be Done?

    I recommend an exception for easements under section 893.33 for situations such as Jill’s. An exception could be created where a purchaser has affirmative notice (actual or constructive) based on use or occupancy, in the same manner as defined under section 706.09(2)(a).

    Another option would be to add the exception provided in the Uniform Marketable Title Act. As described in TJ Auto LLC:

    Under the model act, the statute of limitations does not apply to ‘a restriction the existence of which is clearly observable by physical evidence of its use’ or ‘a use or occupancy inconsistent with the marketable record title, to the extent that the use or occupancy would have been revealed by reasonable inspection or inquiry.’10

    This article was originally published on the State Bar of Wisconsin’s Real Property, Probate and Trust Law Blog. Visit the State Bar sections or the Real Property, Probate and Trust Law Section web pages to learn more about the benefits of section membership.

    For a better understanding of how to define, create, amend, and terminate easements and covenants, Wisconsin Law of Easements and Restrictive Covenants from State Bar of Wisconsin PINNACLE® is your guide.

    Endnotes

    1 TJ Auto LLC, v. Mr. Twist Holdings LLC, 2014 WI App 81, 355 Wis. 2d 517, 851 N.W.2d 831 (holding that notice is irrelevant under the statute.) TJ Auto LLC leaves open the possibility that a prescriptive easement may arise after expiration of the recorded easement. Likewise, a court could possibly find an easement of necessity where there is no other access to the parcel. In this example, Jill’s use did not last for more than 20 years following expiration, and she would not have an easement of necessity due to having frontage on a public road.

    2 Wis. Stat. § 893.33(6). The limitation period was reduced from 60 to 40 years in 1979 – as of July 1, 2020, only the 40-year limitation period applies.

    3 Wis. Stat. § 893.33(2).

    4 Wis. Stat. § 893.33(2); Schauer v. Baker, 2004 WI App 41, 270 Wis. 2d 714; 678 N.W.2d 258.

    5 The limitation did not run in 2018 because the 40-year limitation, as opposed to the prior 60-year limitation, started to apply in 1980.

    6 Wis. Stat. § 893.33(5); O’Neill v. Reemer, 2003 WI 13, 259 Wis. 2d 544, 657 N.W.2d 403.

    7 Wis. Stat. § 893.33(5).

    8 Id.

    9 Wis. Stat. § 893.33(6m).

    10 TJ Auto LLC ¶ 22 (quoting, Unif. Marketable Title Act § 7(1), (2) (1990).)





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