The legal doctrine of adverse possession has been used to resolve boundary disputes between neighboring landowners even before Wisconsin declared statehood. Because adverse possession in some cases allows someone to acquire title to property they didn’t pay for, critics have questioned the fairness of this long-standing doctrine. However, in light of modern land surveying and mapping technologies such as GPS and drones, critics’ beliefs that adverse possession is antiquated and has outlived its usefulness have grown stronger.

In response, several lawmakers recently introduced legislation that would eliminate adverse possession in Wisconsin, with a few exceptions. If enacted into law, this legislation would make Wisconsin the first and only state in the country to no longer recognize adverse possession as a way to resolve boundary disputes. To help REALTORS^® better understand the impacts of such a change, this article provides a brief overview of adverse possession, a description of the proposed legislation, and some of the arguments in favor of and against the legislation.

Background

Adverse possession allows an individual to claim title to land based on their use of the property for a specified period of time. Specifically, a person claiming adverse possession to property must demonstrate that the disputed property was used continuously for 20 years in an “open, notorious, visible, exclusive, hostile and continuous manner that would apprise a reasonably diligent landowner and the public that the possessor claimed the land as his or her own,” according to the Wisconsin Court of Appeals decision in Harwick v. Black. See Wis. Stat. § 893.25; Harwick v. Black, 217 Wis. 2d 691, 699 (Ct. App. 1988). In essence, this requires the true owner of the property to be able to tell that the property is being used or possessed by someone else. The necessary elements for adverse possession would not be satisfied if the efforts to claim possession to the property were undetectable. Moreover, if the true owner gave the possessor permission to use the property, the possessor’s claim to the property would not be “hostile,” thus one of the necessary elements for adverse possession would not be satisfied.

The Wisconsin Statutes recognize two different time frames required for adverse possession. If the adverse possessor has no written title whatsoever, he or she would have to prove 20 years of adverse possession. See Wis. Stat. § 893.25. For this type of adverse possession, only land that is improved, cultivated or protected by a substantial enclosure, such as a fence, is generally considered adversely possessed. However, the period of time that must be shown for adverse possession drops to 10 years if the adverse possessor has any arguable written title to the property, even though that title may be uncertain or ambiguous. See Wis. Stat. § 893.26.

The most common types of adverse possession involve situations where someone builds a fence, garage or building over the lot line by several inches or maybe a few feet. After 20 years, assuming all the other criteria necessary for an adverse possession claim are satisfied, the property would belong to the owner of the fence, garage or building.

Proposed legislation

Recently, Sen. Chris Kapenga (R—Delafield) and Rep. Dave Craig (R—Big Bend) introduced legislation that would eliminate the ability to acquire title to property through adverse possession, with two notable exceptions. 

The first exception would be in situations where a court is unable to identify or locate the record title owner or their successor. The authors maintain that this exception is necessary to help prevent complications in developments where a parcel of property has been subdivided several times, and actual title to the property is unclear.

The second exception would be in situations where a principal building has been located on the real property for the requisite amount of time necessary to take adverse possession. The authors maintain that this exception would help avoid situations where a part of a home or business was mistakenly built on neighboring land. To address these situations, the legislation establishes a process that would require the adverse possessor to reimburse the title owner for the fair market value of the property and any diminution in value.

Finally, the bill would grandfather any dormant adverse possession claims that have satisfied the necessary criteria that existed prior to the effective date of the legislation. Thus, if a neighboring property owner has possessed the property in an open and notorious manner, among other things, and a claim to legal title has not yet been filed with a court, the property owner may still make such a claim to title through adverse possession. 

Arguments in favor of and against the proposed legislation

Although just recently introduced, the bill has already generated a significant amount of controversy. Attorneys, title companies and others have raised a number of concerns about the practical impacts of the legislation, citing numerous examples where adverse possession has resolved boundary disputes in an efficient and equitable manner. On the other side, private property right advocates and some legal scholars have praised the bill for eliminating an antiquated and unjust law that awards squatters with land that doesn’t belong to them. 

The following is a list of arguments, both pro and con, that lawmakers will likely hear as they analyze and debate the merits of the proposed legislation. 

Arguments in favor of adverse possession include:

• The law encourages landowners to use their property so that it doesn’t become overgrown and underutilized.
• The law creates an incentive for property owners to check boundaries and remove trespassers.
• The law provides an efficient way to resolve boundary disputes.

Arguments against adverse possession include: 

• The law creates uncertainty as to who actually owns the property.
• The law creates legal disputes that prevent or delay the transfer of title.
• The law transfers title to someone who has never paid valuable consideration for the property interest.
• The law allows government to acquire land without providing fair and just compensation. Note: The government generally cannot lose land through adverse possession.

The WRA has not yet taken a formal position on the proposed legislation but, in the meantime, will closely monitor the bill as it works its way through the legislative process.

Tom Larson is Senior Vice President of Legal and Public Affairs for the WRA.