Vol. 83, No. 3, March 2010
Adverse possession is an ancient legal doctrine. In the typical adverse-possession case, a property owner has inadvertently built a fence within neighboring property. The discrepancy is then discovered many years later, when one of the neighbors has a survey done for some reason. If the fence has existed for at least 20 years, the neighbor who built the fence has likely gained title to the strip of enclosed property by adverse possession. This is usually not a difficult situation to resolve and is unlikely to end up in court.
Many cases, however, do not fit this mold. Despite hundreds of years of debate on the doctrine, contentious adverse-possession disputes are still prevalent today. In 2008 and 2009, at least 18 cases directly pertaining to adverse possession were heard by the Wisconsin Courts of Appeal.1 Many other cases were, of course, heard by the circuit courts or were settled out of court.
There are several likely reasons why adverse-possession disputes are so pervasive. Perhaps most significant, both the true owner2 and the adverse possessor may feel entitled to and emotionally attached to the land in dispute. This emotional attachment can make negotiation and settlement very difficult and can quickly escalate a dispute toward litigation. Adverse-possession disputes also can be very complicated. The long history of adverse-possession law in Wisconsin has created an intricate web of elements, presumptions, burdens, and defenses. Moreover, the adverse-possession statutes have been amended several times over the years, and the creation of new real-estate statutes can lead to new issues.3 Finally, the fact-specific nature of adverse-possession disputes tends to create continuous litigation because almost any new claim is distinguishable in some way from existing precedent.
Whether the issue of adverse possession arises in the context of full-blown litigation or with respect to a transaction, the parties’ lawyers will need to know the law of adverse possession to competently advise their clients.4 Although mainly unpublished, the 18 recent adverse-possession cases heard by the courts of appeal highlight some of the numerous complications of adverse possession and provide insight regarding how to prove and defend adverse possession claims and how to avoid a dispute in the first place.
The Requirements of Adverse Possession
The Wisconsin Statutes delineate the requirements of adverse possession5 and define the term adverse possession.6 However, the statutes were not meant to alter the common-law definition of adverse possession.7 Under the common law, possession for the statutory period must be exclusive, uninterrupted, continuous, and hostile, and there must be open and notorious actual occupancy.8 Each element must be met, but the elements often overlap and usually are proven together. Proving these elements is required to obtain title under either the general 20-year statute or the 10-year “color-of-title” statute.9 There are differences between these two statutes, but this article focuses on their common elements and issues.10
Period of Possession
Current Wisconsin law requires 20 years of adverse possession, not founded on a written instrument, to gain title by adverse possession,11 but this time period has varied in the past. Knowing when changes to the adverse-possession period have occurred is important for a few reasons. First, changes to the adverse-possession statutes have prospective application only.12 Thus, where a claim was made based on 20 years of adverse possession, but the applicable statute had changed from a 40-year to a 20-year requirement within that time period, the adverse-possession claim failed because the possession period overlapped the new or changed period: to make a claim based on the 20-year statute, all 20 years of possession had to have occurred after the statutory change.13 Second, the period of possession does not have to be the period directly preceding the adverse-possession claim.14 If a claimant can prove he or she obtained title by adverse possession 10 or 15 years ago, the claim will succeed even if the claimant’s acts since then would not be enough to constitute adverse possession.
The result is that adverse possession can be based on acts that occurred long ago. Proving adverse possession dating back 20 years might be difficult; proving adverse possession dating back 50 or 60 years might be nearly impossible. This is particularly true when a claim relies on the common-law doctrine of “tacking” under which the periods of possession of persons in privity with each other are combined to meet the statutory requirement.15 Often the prior adverse possessors cannot be located, and other witnesses or evidence must be found to prove the claim.
Attorneys faced with proving such claims sometimes must be very creative. For example, in the recent case Dorsha v. Wiesner, a claim of adverse possession dating back to 1923 was proven based on old aerial photographs from the county zoning department and the testimony of a prior occupant who had grown up on the property in the 1930s.16 Although the claimants had not used the property in a manner that would meet the requirements of adverse possession since 1971, the claim was upheld based on the evidence of possession before that date.17 The claimants in Howe v. Boyle were not so lucky, and their adverse-possession claim failed because they were unable to provide adequate evidence dating back to 1950.18
Exclusive, Uninterrupted and Continuous Possession
For a claimant to successfully gain title by adverse possession, possession must be exclusive, uninterrupted, and continuous. There is a starting presumption that the true owner is in possession of the land,19 and to overcome this presumption, a claimant must show that he or she intends to exclude the true owner.20 This intent to exclude must be shown by actual visible means so that the true owner has notice.21 As explained below, acts that constitute open and notorious actual occupancy generally will satisfy this requirement, and a claimant need not show more to establish exclusivity.
The claimant also must prove that his or her possession was continuous throughout the statutory period. This does not mean that each act of possession need be continued, but that the acts of possession as a whole must continue for the statutory period.22 This also can be difficult to prove, because the claimant must provide evidence spanning the entire statutory period. In Hall v. Wilsman, a claim of adverse possession failed in part because the claimant was unable to show that a predecessor in interest had used the property in a manner that would constitute adverse possession.23 The claim also failed because the claimant had done nothing more than mow the property for a period of time, which was not enough to provide notice to the true owner during that period.24
Jessica J. Shrestha, U.W. 2009 cum laude, is an attorney with Kasieta Legal Group LLC and practices in personal injury, employment law, and general civil litigation. She thanks attorneys Mark Young and Jim Voss for their assistance with this topic. Reach her at firstname.lastname@example.org.
On the other hand, a true owner can defeat a claim of adverse possession by showing that the claimant’s possession was not exclusive or was interrupted. If both the true owner and the claimant performed acts of ownership on the disputed property for the claimed period of possession, the claimant’s possession cannot be considered exclusive.25 Similarly, if during the requisite time period the true owner interrupts the possession by making an obvious (notorious) reentry and dispossesses the adverse possessor, then the possession was not exclusive or continuous.26 The reentry also must result in a “substantial and material interruption” to be successful.27
Yet, attorneys should be cautious in counseling clients to dispossess an adverse possessor by reentry. If the adverse claimant has already gained title by adverse possession before the attempted reentry, the prior owner may be liable for any damages he or she causes. In Olson v. Weber, the record owner attempted to regain possession of her property by destroying lilac bushes and constructing a fence in the middle of a driveway used by the claimants.28 However, the court found that the claimants had already gained title by adverse possession and awarded the claimants damages for their destroyed bushes and removal of the fence.29
Open and Notorious Possession, Actual Occupancy
Wisconsin Statutes section 893.25 requires substantial enclosure, cultivation, or improvement of land, but the statute “does not purport to enumerate all of the conditions which constitute adverse possession.”30 Rather, the general requirement is open and notorious actual occupancy.31 “Actual occupancy means the ordinary use to which the land is capable and such as an owner would make of it.”32 The acts also must be sufficiently “open and obvious” to apprise the true owner of the possession and its adverse nature.33 Thus, the focus of the requirement is on giving notice to the true owner of exclusion and of the claimant’s dominion.34
Determining whether acts of possession meet the requirement of open and notorious actual occupancy is highly case specific and often is the main issue in adverse-possession disputes. For example, in Howe v. Boyle, the adverse-possession claim failed because the court found that “two timber harvestings, past grouse hunting, and the temporary posting of trespassing signs” in a wooded area was not enough to provide notice to the true owner.35 In contrast, in another recent case, Thorn v. Olson, the court found that planting trees, shrubs, and a garden, mowing the lawn, and placing various small structures and objects including birdbaths were adequate.36
Hostile Possession and Permissive Use
To meet the requirements of adverse possession, the possessor also must have a “hostile intention” to possess the land.37 However, hostile intent does not require a “deliberate, wil[l]ful, unfriendly animus.”38 In fact, hostile intent does not depend on the mindset of the possessor at all. Rather, an act is considered hostile when it is inconsistent with the rights of the record owner and not subordinate to those rights.39 If possession is pursuant to the permission of the true owner, the possession is subordinate and therefore not hostile.40
When there is no evidence of permission, and the possessor proves the other elements of adverse possession, a presumption arises that the possession was hostile.41 The result of this presumption is that while hostility is still a required element of adverse possession, no special showing must be made to prove the element unless there is evidence of permission. The burden of showing permissive use is thus effectively on the true owner, and permission operates as a defense.42 If the true owner can show that possession was pursuant to his or her permission, the presumption of hostility is rebutted and the claim is defeated.43
Because permission can defeat an otherwise valid adverse-possession claim, it is frequently in dispute44 and an important factor for all attorneys to be aware of. If your client is the property owner, you should advise your client to always document any permission given, and to even record the permission if possible, being sure to make clear that the permission can be revoked at any time. Although there is no requirement that permission be written, having a written and recorded document will make defeating a claim much easier and will probably prevent a claim from even being made. It also is a good idea for an owner to give written permission even if he or she did not expressly grant permission but simply does not mind that his or her property is being used.
Another complication of the rules of adverse possession is the doctrine of acquiescence. Acquiescence was originally created as a supplement to the old adverse-possession requirement of adverse intent.45 The requirement of adverse intent was viewed as being harsh, and courts began to find in favor of claimants even without an adverse intent, if the true owner acquiesced in the possession for 20 years.46 Eventually the doctrine blended into the general rules of adverse possession, and in most cases the focus is now on the adverse character of the possession alone rather than on the parties’ mindsets.47
However, over time, specific exceptions to the requirement of 20 years of possession have developed around the doctrine of acquiescence. When one of the exceptions applies, a person in possession might be able to acquire title based on a period of possession for less than 20 years.48 Because of this possibility, attorneys must be aware of the doctrine to accurately advise their clients. Attorneys should carefully consider the doctrine of acquiescence and its implications if faced with any of the following four situations: 1) a boundary dispute has been settled; 2) a boundary dispute is between parties who purchased from a common grantor; 3) a third party purchases in reliance on an incorrect boundary; or 4) neighbors have procured a survey to locate a boundary.49
Attorneys representing buyers or sellers in real estate transactions must be heedful of potential adverse-possession claims. If a seller is aware of a potential claim, the seller should attempt to quiet the claim before attempting to sell the property. Possible options include obtaining an affidavit from the potential claimant stating that there is no claim or offering to sell the disputed portion of the property to the claimant at a reduced price.50
A buyer needs to be vigilant in determining if there are any potential adverse-possession issues before making an offer to purchase. A standard title-insurance commitment contains an exception for adverse-possession claims, which places on the buyer the risk of having to contend with a claim.51
Buyers should be advised to ask where the property line is located and to look for any signals that someone else is using part of the property. Buyers should be aware that utility poles are not always located at property corners, and buyers should be particularly wary of any fences, sheds, or other structures on neighboring properties that do not seem to line up with the apparent boundary lines. Sheds frequently are cited as acts of adverse possession, and were involved in three of the 18 most recent adverse-possession cases.
If a survey is available, it should be carefully compared to the property. After reviewing the property, if a buyer is concerned that there may be an adverse-possession claim, the buyer should make the purchase offer contingent on the seller’s obtaining a written release from the potential claimant.
If a potential adverse-possession dispute cannot be resolved, and the parties still want to go forward with the transaction, a quitclaim deed can be used to transfer the risk to the buyer. One option is to “divide”52 the property into separate deeds, with the seller conveying by quitclaim deed only the part that is disputed and conveying the rest by warranty deed.
Adverse-possession issues arise frequently and can occur in any context involving real property. These issues involve many intricate rules, which often pertain to very discrete situations.53 Considering the likely substantial monetary and emotional value involved, any attorney who could come across an adverse-possession issue should be well aware of the doctrine and its complexity.