FAUERBACH & MARTELL, S.C.
ATTORNEYS AT LAW
www.ashlandlegal.com
Court House
715-682-9151
200 CHAPPLE AVENUE
P.O. BOX 486
ASHLAND, WI 54806
Fax: 715-682-0321
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BOUNDARY DISPUTES AND EASEMENTS

Boundary Disputes between neighbors are more common than what people think, particularly in Northern Wisconsin, where there’s often a lack of good surveys or, in some instances, any surveys at all.

 

Surveys don’t necessarily resolve a boundary issue. A survey establishes the location of a boundary based upon a written title. However, a written title may be overcome by the legal concept of adverse possession.

 

Adverse possession is the ownership of land that is obtained by open exclusive and notorious use of the land for a certain period of time. If the adverse possessor has no written title whatsoever, he or she would have to prove 20 years of adverse possession. For this type of adverse possession, usually only land protected by a substantial enclosure or usually cultivated or improved is considered adversely possessed. However, the period of time that must be showed 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. The statute of limitations can be as low as 7 years where the adverse possessor can prove that they have been paying property taxes on the parcel.

 

Adverse possession boils down to open use of the property to the exclusion of the record title holder. The most common type of adverse possession is where somebody builds a building, perhaps a home, on property that does not belong to them. After 20 years, the property would belong to them, but in order to legally establish that ownership, they have to go to Court and get a judgment from the Circuit Court Judge. This is not an easy or simple process and does not necessarily mean that they become the owner of everything they thought they owned. In the example of the person that builds a house on property that does not belong to them, they may in time become the owner of that property and the yard. Beyond the yard, if there’s other land that is not usually cultivated or improved in some way, it has likely not been adversely possessed.

 

Permissive use of property is the opposite of adverse possession. If you give a person permission to use property, then the law does not penalize you 20 years later if the person claims that they owned it. Property use pursuant to a written license is normally considered to be permissive, but verbal permission can also defeat a claim of adverse possession. Of course the better practice, if you’re going to give permission to somebody to use your land, is to send a letter confirming the permission and keep a copy.

 

The whole concept of adverse possession is counter intuitive to the non-lawyer. The idea that somebody can obtain land that doesn’t belong to them by simply using it, is not the way that people commonly think about these things. If you’re in a situation like this, you probably should consult an attorney early on. You probably want to talk to an attorney before you even get a survey, because sometimes getting surveys can have unexpected and very unfortunate results. People often rely upon platbooks or property tax maps for evidence regarding boundaries. These kinds of maps are not surveys and are not the basis for determining where a property line is. However, in certain situations, a platbook or property tax map could be used as evidence of adverse possession.

 

EASEMENTS

 

An easement is a right to cross another persons property for any number of purposes. The most common purpose is for ingress and egress, but there are also easements for utilities and any number of other things, including scenic and conservation easements.  An easement for ingress and egress does not necessarily include the right to install utilities. An easement is and should normally be by written grant. The law also implies an easement in certain situation such as where an owner splits his property and deeds part of it away under circumstances in which the recipient could not reach a public road without crossing the original owner’s land. There are also easements of necessity which are similar to implied easements. Prescriptive easements develop over a period of 20 years by adverse use. The things that have to be proven for a prescriptive easement are very similar to what has to be proven for adverse possession, but where a prescriptive easement is established the right is to use the property for the particular purpose (usually ingress and egress) and does not mean that the easement owner owns the land, only the right to use it for a particular purpose.

 

When people purchase a title insurance at the time that they purchase their land, they often think that takes care of any boundary disputes. Normally it does not. Usually there is an exclusion in the title policy that specifically says that it does not cover either boundary disputes or things that are not disclosed by the public land records. Title insurance therefore does not normally cover either side in a boundary dispute because of those exclusions. However, if someone claims an easement based upon written title evidence at the Register of Deeds office, the title insurance may provide a defense for that situation, provided that there wasn’t a specific exclusion for that particular easement in the title insurance policy.