Property owners enjoy the use of easements in a variety of forms, including joint driveway access, the ability to cross over someone else’s land to reach a private pier or access farm equipment, or gaining access to a business parking lot by utilizing the road of another. Most property owners have no idea their easement had — or has, depending on the circumstances — an expiration date. 

Imagine the following scenario:

Parcel A and Parcel B are neighboring properties. Parcel A includes a single-family home and garage located on the lake. The only way to access Parcel A’s property is by use of a driveway shared with Parcel B and primarily located on Parcel B. The driveway easement was created and recorded in 1979 when the land was split up to create Parcels A and B. The recorded easement provides it goes on in perpetuity.  

The owners of Parcel A and B go along with no issue for 41 years. On September 1, 2020, Parcel B is sold “subject to easements and restrictions of record.” There is document record referencing the driveway easement, but the easement itself was not re-recorded. The owner of Parcel B provided written disclosure as to the existence of the driveway easement in the transaction. The owner of Parcel A continues to use the driveway. However, the new owner of Parcel B has just learned about a law that provides if an easement or a reference to an easement is not re-recorded within 40 years, the easement is extinguished. The owner of Parcel B tells the owner of Parcel A they must pay $50,000 for the driveway access, and the owner of Parcel B will agree to a new easement to be recorded. Otherwise, the owner of Parcel B will deny the owner of Parcel A access via Parcel B. 

The owner of Parcel A has an issue because the law, until recently, was behind the owner of Parcel B on this one. 

Yes, you read that right. 

Until recently, Wisconsin law provided that if an access easement or an instrument referencing the easement wasn’t re-recorded at the register of deeds within 40 years of its creation, the easement would expire and become unenforceable; even if the original access easement agreement provides it goes forever. 

You may be asking yourself; how did I not know about this? Don’t worry, you are not alone. Most REALTORS^®, attorneys and property owners had no idea about this law. This article will help provide you some background of the law and the current law.  

History of the 40-year limit

Wis. Stat. § 893.33, an initiative backed by land title proponents, was originally created to help clean up title by eliminating old interests that create a cloud on title as a matter of law. The concept was to reduce confusion by statutorily causing easements to expire and thus eliminating them from the title to ensure there were no clouds on title; no abandoned easements that could someday impact future property owners. 

Until July 1, 1980, the requirement to re-record was every 60 years. However, in the late 1970s, the Wisconsin Legislature changed the statute reducing the re-recording requirement from 60 years to 40 years. Essentially all easements created as of July 1, 1980, had to be re-recorded every 40 years. Otherwise, those easements would expire July 1, 2020. 

Accordingly, in July 2020, property owners started to discover easements impacting their property or its use did not meet the statutory requirements of Wis. Stat. § 893.33, resulting in claims the easements were unenforceable. 

Concerned about the lack of awareness by property owners about this 40-year statute of limitations and the substantial impact this law has on property rights, the WRA began its journey to have the law changed. 

The new law

On March 11, 2022, Gov. Tony Evers signed one of the WRA’s legislative priorities addressing this very issue, creating 2021 Wis. Act 174, which can be found at docs.legis.wisconsin.gov/2021/related/acts/174.pdf. Prior to Act 174, Wisconsin law provided that if an access easement wasn’t re-recorded at the register of deeds within the 40 years, the easement was extinguished and unenforceable, even if the original easement agreement provides it goes forever. The following are the top 10 things to know about the new law. 

1. The new law only applies to access easements. 
Access easements are commonly executed on commercial, residential and agricultural parcels. Access easements often provide access to landlocked parcels, such as joint driveways, as well as offer access to parking lots, hunting land, water and farm equipment.

Wisconsin law exempts certain interests from the 40-year statute of limitations, such as interests of utilities and railroads, political subdivisions and conservation easements. Act 174 only addresses private easement agreements. 

2. The law protects the freedom to contract. 
It is against public policy to have a law automatically terminate a previously negotiated contract between two parties simply because the agreement was not re-recorded after 40 years. As with other contracts, state law should not override agreements between private parties. The presumption should be if the parties did not include a termination time frame in the access easement, then the easement continues in perpetuity.

3. The new law applies only to recorded access easements.
This legislation only applies to easements recorded at the county register of deeds where the property is located. If the parties in a transaction state there is a verbal access easement agreement, they should be immediately directed to speak to legal counsel. REALTORS^® should speak to their supervising broker as well.   

4. Access easements recorded on or after January 1, 1960, run in perpetuity. 
Any easement that is recorded on or after January 1, 1960, no longer has any re-recording agreements.  

5. Access easements recorded on or before January 1, 1960, run in perpetuity if one of the following applies: 
a) The easement was recorded before January 1, 1960, and a notice, an instrument or an instrument referring to the easement is recorded after January 1, 1960, and before the property is sold or transferred.
b) The easement or express reference to the easement was recorded before January 1, 1960, and it is apparent from or can be proved from physical evidence of its use at such time a person acquired the property subject to the easement.

Agents should always encourage the parties to speak with their private legal counsel as to the existence or term of any easement, especially those recorded on or before January 1, 1960. This section of the law was created to provide certain steps for easements recorded on or before January 1, 1960, to ensure that random third parties do not pop in claiming rights to unused recorded easements 80 years later. Further, the 1960 time frame was selected to make sure title companies did not have to conduct title searches back to the original creation of the title.  

6. The terms of the access easement agreement control.
If the access easement agreement provides a specific termination date for the easement, the easement agreement controls. The statute does not trump the agreement. Again, public policy supports the parties’ right to contract freely.  

7. The legislation is retroactive for access easements.
Unless the easement provides otherwise, an access easement recorded on or after January 1, 1960, goes on in perpetuity. See Wis. Stat. § 893.33(6m)1. Additionally, any access easement recorded on or after January 1, 1960, that meets the requirements of Wis. Stat. § 893.33(6m)2 and 3, also goes on in perpetuity. REALTORS^® cannot provide legal advice and should have the parties confirm with their private legal counsel about the enforceability of the access easements. 

8. The legislation applies to current ligation. 
Act 174 may be asserted to any action, defense or counterclaim against pending litigation before March 13, 2022. Therefore, it is possible that current litigation will be impacted and, if the easement meets the requirements of Wis. Stat. § 893.33(6m), may be enforceable. 

9. The legislation does not impact any litigation resolved as of the bill’s effective date.  
Act 174 does not modify any litigation that was resolved as of March 13, 2022.

10. Effective date is March 13, 2022. 
Act 174 is effective as of March 13, 2022. 

For more information about Act 174, see the April 2022 Legal Update, “Wisconsin’s New Easement Law” at www.wra.org/LU2204