Real Estate: Interrupting Adverse use and Adverse Possession

If you didn’t already know, on March 3, 2016, Wisconsin law changed in regards to adverse use and adverse possession of a record titleholder’s property. The law now says that a titleholder may interrupt the prescriptive use or adverse possession of their property by filing an affidavit of interruption with the register of deeds office in the county the property is located.

When adverse possession or adverse use is interrupted, the clock starts all over again. The intention behind the interruption is to stop adverse use claims or adverse possession.

Nonetheless, Wisconsin law says that adverse possession rights may accrue if the person who was in connection with their predecessors adversely possesses real estate for 20 years when such possession is not specified in a written document. It’s 10 years when adverse possession is stated in a written instrument. This lowers to 7 years when adverse possession is recorded on a title claim and taxes have been paid.

Prescriptive easement rights can also accrue if the adverse use of a property continues for 20 years.

Regardless of the scenario, the adverse possessor must be using the property in a hostile way or in a way that is not consistent with the titleholder’s rights.

Adverse possession also requires that the property is occupied, such as by an enclosure or that it is improved or cultivated in some way.

In order for a person to comply with the new statute, the affidavit of interruption must be filed with the office of the register of deeds within the property county. It must be accompanied by a survey in a form that is specified in Wis. Stat. 893.28 and certified no earlier than five years before the date it is recorded with the register of deeds. The titleholder must also provide a notice to the neighbor or another individual who is adversely using or possessing the real estate. If the person adversely possessing or using the property is unknown, a Class 1 notice must be published.

There are certain items that must be included in the affidavit for interruption. They are:

  • The parcel’s legal description
  • A statement showing the person executing the affidavit is the owner
  • A description of the adverse possession or use
  • A statement saying that a new period of adverse possession can begin the day of the affidavit’s filing
  • A statement saying the owner will provide a notice to the party adversely using or possessing the property

The catch is that while the affidavit can interrupt adverse use or possession, it doesn’t prevent future adverse use or possession claims from coming about. If adverse use or possession rights have already accrued within the required statutory period, the affidavit isn’t going to eliminate those rights.

Just keep in mind that filing the affidavit isn’t going to be an admission of adverse an adverse use or possession claim because the law states that it won’t. This is also not an exclusive procedure, which means there are other methods for solving an adverse possession or use situation.

Being that this can be a complicated matter, it is something that your real estate attorney can help you with. You can find the best course of action to resolving the issue. You also receive the peace of mind that everything will be handled correctly.