While this article will not provide the sports-related banter of ESPN’s show “Pardon the Interruption,” hosted by Tony Kornheiser and Michael Wilbon, I hope those familiar with the show will attempt to read each section of the article with the same fervor of the show’s rundown format. Therefore, to honor the speed of the show, this article will provide a brief overview of the affidavit of interruption — the newest opportunity for a property owner to guard against an adverse possession claim. This concept is explained in detail in the November 2016 Legal Update, “Protecting Property from Adverse Possession Claims,” www.wra.org/LU1611. 

What is adverse possession? 

Adverse possession, in basic terms, is the process of taking title from a legal owner and giving it to one who has been in possession for an extended period of time — usually 20 years. Adverse possession can be used as the basis for a quiet title action, under Wis. Stat. Chap. 841, to establish title, or it can be used as a defense to an action brought by the neighbor seeking removal of encroaching items, restoration of possession or confirmation of title. 

In the last legislative session, the Wisconsin legislature decided to create a new opportunity for property owners to be proactive rather than reactive in protecting their property when they believe another may adversely possess their land. And as of March 2016, a property owner can place a person on notice who the property owner believes may adversely possess the property and interrupt any potential adverse possession claims. 

Elements of adverse possession

Six basic elements must be shown to prove adverse possession under any of the adverse possession statutes. For possession to be adverse, one of the required elements is that the use must be continuous and uninterrupted — generally this element means that no one other than the adverse possessor has been in actual possession throughout the applicable statutory period. The adverse possession must last for the time set in one of the adverse possession statutes. 

Statutes such as Wis. Stat. § 893.25 — Adverse Possession Not Founded on Written Instrument, Wis. Stat. § 893.26 — Adverse Possession Founded on a Recorded Written Instrument, and Wis. Stat. § 893.27 — Adverse Possession Founded on Recorded Title and Payment of Taxes contain several different formulas for making an adverse possession claim. The primary theories are found in the 20-year and in the 10-year “under color of title” adverse possession statute. There is also a statute prohibiting adverse possession against the state, which is Wis. Stat. § 893.29 — No Adverse Possession by or Against the State or Political Subdivisions. For more information on the basics of adverse possession, see the June 2001 Legal Update, “Encroachments,” at www.wra.org/LU0106. 

Effective March 1, 2016, Wis. Stat. § 893.305 created a legal method for owners to interrupt someone they believe is adversely possessing the owner’s land. The legislature created the “Affidavit of Interruption,” which intends to restart the clock for the person who may adversely possess land. The affidavit of interruption may be used to interrupt all the varieties of adverse possession as long as the statutory steps of Wis. Stat. § 893.305 are followed.

893.305  (2) INTERRUPTION BY AFFIDAVIT. A record title holder may interrupt adverse possession of real estate under s. 893.25, 893.26, 893.27, or 893.29 and adverse use of real estate under s. 893.28 (1) by doing all of the following:
(a) Recording, in the office of the register of deeds for the county in which the record title holder's parcel is located, an affidavit of interruption along with a survey of the record title holder's parcel that was certified no earlier than 5 years before the date of recording.
(b) Providing notice of the recorded affidavit of interruption in accordance with sub. (4).
(c) Recording proof that notice was provided in accordance with sub. (4) in the office of the register of deeds for the county in which the record title holder's parcel is located.
(d) If notice is provided under sub. (4) (a), recording on the neighbor's abutting parcel, within 90 days of the date the neighbor received the notice, a notice of the recorded affidavit of interruption that includes a copy of the recorded affidavit of interruption, including the attached survey. A notice of the recorded affidavit under this paragraph shall include a legal description of the neighbor's abutting parcel and of the record title holder's parcel.

The owner of the property, or the record holder, records the affidavit of interruption with the register of deeds in the county where the owner’s property is located, along with a survey of the property that was certified no less than five years before the date of recording. See the next page for details. After the owner records the survey and affidavit of interruption, the owner then provides notice to the person believed to be adversely possessing his or her land. If the property owner knows or had reason to believe that the person adversely possessing the land is a neighbor, then the notice must be recorded on the neighbor’s abutting land within 90 days of the neighbor receiving the notice.

The process

893.305  (3) AFFIDAVIT OF INTERRUPTION. A record title holder shall include in an affidavit to interrupt adverse possession of real estate under s. 893.25, 893.26, 893.27, or 893.29 or adverse use of real estate under s. 893.28 (1) at least all of the following:
(a) A legal description of the parcel of land that contains the real estate that is being adversely possessed or adversely used, as described in par. (c).
(b) A statement that the person executing the affidavit is the record title holder of the parcel.
(c) A general description of the adverse possession or adverse use that the record title holder intends to interrupt by recording the affidavit.
(d) A statement that the adverse possession or adverse use of real estate described in par. (c) is interrupted and that a new period of adverse possession or adverse use may begin the day after the affidavit is recorded.
(e) A statement that the record title holder will provide notice as required under sub. (4).

The affidavit of interruption must be created and must include the following:

• A legal description of the real estate allegedly being adversely possessed.
• A statement that the person executing the affidavit is the record title holder of the parcel.
• A general description of the adverse possession or adverse use that the record title holder intends to interrupt by recording the affidavit.
• A statement that the adverse possession or adverse use of real estate described above is interrupted and that a new period of adverse possession or adverse use may begin the day after the affidavit is recorded.
• A statement that the record title holder will provide notice as required under Wis. Stat. § 893.305(4).

(d) If certified mail sent by a record title holder under par. (a) or (b) is returned to the record title holder as undeliverable, the record title holder shall provide notice by publication under par. (c).

An affidavit of interruption must be recorded in the register of deeds office for the county in which the disputed property is located. Following this, the notice to the person believed to be adversely possessing, detailed in Wis. Stat. § 893.305(4), must provide the following: 

1. If the record title holder knows, or has reason to believe, the person using the record title holder’s real estate is a neighbor, the record title holder shall provide notice to the neighbor by sending all of the following by certified mail, return receipt requested, to the neighbor’s address, as listed on the tax roll:
   • A copy of the recorded affidavit of interruption, including the attached survey.
   • A notice of the record title holder’s intent to, within 90 days of the date the notice is received, record a notice of the affidavit of interruption on the neighbor’s real estate that abuts the record title holder’s parcel. Notice under this subdivision shall include a reference to this section.
2. If the record title holder knows the identity of the person and the person is not a neighbor, the record title holder shall provide notice to the person by sending the person a copy of the recorded affidavit of interruption, including the attached survey, by certified mail with return receipt requested to the person’s last-known address. The notice shall include a reference to Wis. Stat. § 893.305(4)(a)2.
3. If the person who is adversely possessing or adversely using the record title holder’s real estate is unknown at the time the affidavit of interruption is recorded, the record title holder shall provide notice by publishing a class 1 notice under Chap. 985 in the official newspaper of the county in which the record title holder recorded the affidavit of interruption. The published notice shall include all of the following:
   • A statement that an affidavit of interruption was recorded.
   • The recording information for the recorded affidavit of interruption.
   • The street or physical address on which the affidavit of interruption was recorded.
   • A reference to this section.
4. If the certified mail, via options A or B, is returned to the record title holder as undeliverable, the record title holder shall provide notice by publication via option C.

Providing an affidavit of interruption only restarts the clock by interrupting the continuous element. A new period of adverse possession or continuous use may begin after the date the affidavit of interruption is recorded on the record title holder’s parcel. See Wis. Stat. § 893.305(5). 

While the affidavit of interruption gives the property owner the ability to stop the clock of adverse possession, the statute also clearly provides the following:

1. The affidavit of interruption may not be construed as an admission by the property owner that his or her property is being adversely possessed or being used adversely. 
2. The affidavit of interruption is not evidence that a person’s possession or use of the property is adverse to the property owner. 
3. The interruption of adverse possession or adverse use is not exclusive.

See Wis. Stat. § 893.305(7). 

Even though Wis. Stat. § 893.305 is an option for property owners to interrupt the alleged adverse possession of land, real estate licensees should not get involved in the process or interpretation of an affidavit of interruption recorded on a property. Instead, licensees should encourage the party to reach out to an attorney to understand how the affidavit could affect the transaction.

Cori Lamont is Director of Corporate and Regulatory Affairs for the WRA.