I had the pleasure this past weekend watching my son’s Mock Trial Team compete in a regional event. The kids worked hard and did a nice job with the material that they were given; Adverse Possession. I have to admit that I was more than a little interested in the proceedings since the case that they were arguing involved forest land. My son and I talked quite a bit about personal property rights and forms of ownership as well as the laws governing illegal trespass and adverse possession. All in all it was a learning experience for both of us and as a good conservationist, not wanting to waste anything, I thought I would share what I have learned with all y’all.
Adverse Possession
What is Adverse Possession? Adverse Possession, also known colloquially as “Squatter Rights,” can best be defined as the ability to gain legal possession of a parcel of land you do not own by “improving” the land. The simplest way to think about this, and perhaps the most common occurrence, is the loss of land following a new survey of a common property boundary. Many landowners will generally accept that the fence that separates two properties defines the legal boundary of their property. However, many find that when their property is surveyed that they either own more or less than they thought they did because the fenceline did not define the legal boundary. Think of it this way… If a new survey shows that the fenceline is in the wrong place and I have been cropping my neighbor’s land I can sue for adverse possession and gain ownership of the land between the legal property boundary and the old fenceline that I farmed for all those years because, even though the land may not have been legally mine, I have legally demonstrate an “improvement,” to the land by farming the property and producing a commodity crop.
The Requirements of Adverse Possession
Wisconsin State Law (Statute 893, Sub-chapter III) defines adverse possession and the conditions that must be met to make a legal claim for possession of a parcel of land against the current landowner. The conditions that must be met are exclusive, uninterrupted, continuous, and hostile use of the land that meets the statutory period of possession and the actual occupancy (use of the land) must be open and notorious.
Facts which constitute possession and occupation of real estate under this section (893.26) include, but are not limited to, the following:
- Where it has been usually cultivated or improved;
- Where it has been protected by a substantial enclosure;
- Where, although not enclosed, it has been used for the supply of fuel or of fencing timber for the purpose of husbandry or for the ordinary use of the occupant; or
- Where a known farm or single lot has been partly improved the portion of the farm or lot that is left not cleared or not enclosed, according to the usual course and custom of the adjoining country, is considered to have been occupied for the same length of time as the part improved or cultivated.
To be successful, a claim must demonstrate that each element has been met as well as show that the current landowner or succession of landowners have not actively managed the land or met these requirements.
Period of Possession
893.28 states that “Continuous adverse use of rights in real estate of another for at least 20 years establishes the prescriptive right to continue the use.” A review of court cases has shown that 20 years is not a hard and fast rule but rather a condition that must be met and proved in a court of law. There are oddities to this as well. The continuous use doesn’t have to be by one individual; it could be by a series of individuals over this period who use this property either through purchase or inheritance. Using the farming example from above, think of it as three generations of the same family farming the land passing from one heir to the next. Also, and this is important, the clock does not reset when the current owner dies and the land is sold or inherited. Again, think of it this way… I inherit land from a relative; a portion of this land has been used (adversely possessed) by a neighbor who continues to use it. The neighbor is required to show at least 20 years of continuous use of the land not twenty years while an individual or specific landowner held title or deed to the property. This is extremely important for those who are in the process of planing how to distribute their estate. If you haven’t been to you land in a while then I strongly recommend that you make a trip during the hunting season and walk the entirety of the property to make sure that you don’t have a situation like this developing on your land.
Improvements
It isn’t enough for someone to simply use the property (pick berries each summer) they must make improvements to the property that justify their claim in court that they have developed the land and so deserve ownership of the land. Notice that in all of this there is no means test or the requirement that the person seeking to possess your land generate income. So, what qualifies as an improvement? Cultivation; a substantial enclosure (I think of this more in terms of fencing for livestock than just putting up a fence to define or mark your territory); and making firewood are generally interpreted as improvements (893.26). I would also note that it can include more than just the land where these activities have occurred but all land extending to a natural (water body) or man-made barrier (drainage ditch or fence) that would naturally be used for these activities.
Exclusive, Uninterrupted, and Continuous
The next requirement that must be met is that the use be exclusive, uninterrupted and continuous. Remember that adverse possession starts from the basis that the person using your land has made improvements to it and they are the only ones who are enjoying these improvements. I have seen the term “exclusive” defined both as preventing the landowner from enjoying their lands (fenced out) as well as the rightful owner essentially forfeiting their rights to ownership since the only person using the land (exclusive) is the person who is seeking to adversely possess it. At the end of the day the courts are going to consider whether you, as the rightful owner, were making use of the land during this time or whether it was used “exclusively” by someone else.
Uninterrupted and continuous are also important terms here. The person seeking title to your land must show that they used it for one of the purposes listed above for at least 20 years and for each year during that period. Additionally, if you use the disputed property at anytime during this period for similar purposes then the person seeking title cannot claim exclusive, uninterrupted, and continuous use of the property over that time period. It may not reset the clock but it will certainly damage any case seeking adverse possession.
Deer Hunters and Deer Stands
Fortunately, a recent Appeals Court decision determined that “the regular use of a disputed area for hunting, placement of deer stands, and the making of a dirt road to a lake did not constitute open, notorious, visible, exclusive, and hostile use. The sound of gunshots does not give a reasonably diligent titleholder notice of adverse possession. Gunshots would have been consistent with trespassers, as would portable deer stands, some kept in place all year. “ Essentially, the Appeals Court determined that this was trespassing not adverse possession. See Wisconsin Court of Appeals case 2009AP757 to read the entire Opinion quoted above.
Hostile?
This is perhaps the oddest and most difficult of all terms to understand since the person or persons trying to adversely possess your land are, by definition, trespassing. They have broken the law just by being on your property without your permission. Under Wisconsin state law persons who enter your land or remain without your specific permission are considered to be trespassing (Wisconsin State Statute 943.13). This is where the term “hostile” comes into play. It isn’t that these people are mean, angry, or upset it is that their actions are hostile to your ownership; they are using your property to benefit themselves without your permission. Hostile!
Actual Occupancy
You have to love this term! But what does it mean? The term “actual occupancy” relates to the normal activities or uses that any landowner might enjoy on this or similar land. This is not meant to be permissive but rather to define what is a reasonable use of the land and whether the person seeking to possess the land has engaged in reasonable activities; such as, growing crops in a field, pasturing cattle on grassland, harvesting timber from a forest.
Open and Notorious
The term “open and notorious” simply means that the adverse possessor is engaging in these activities and is not hiding their activities but is “open” and “notorious” about it. As in the hunting example above; simply firing a gun during hunting season does not provide a landowner with notice that someone is hunting on their lands and not going out to confront them and letting them know they are trespassing does not provide the trespassers with permission to hunt on the property. This term does not necessarily include actually notifying the current owners but it does demonstrate the idea that possession of the land is generally known by the public or the people in the neighborhood.
How can you protect your self?
Demonstrate that you are actively managing your land. How would you do that? I would encourage any woodland owner to have a management plan for their property and to implement the recommendations of the plan, update your woodland inventory on a regular basis (10-year interval), walk your land and perform simple maintenance activities whenever you can, and, if you don’t hunt, to make an exclusive arrangements with friends or neighbors who do and make a part of that arrangement a requirement that they look for and notify you of anyone who might be trespassing or making use of your land without permission. If you do these things then you should have all the evidence you need to defend yourself from anyone who seeks to make an adverse possession claim against you or your land.
This has been an interesting topic and I would encourage any woodland owner to learn more. These laws have existed for time out of mind and I have seen references in English law that date back almost a thousand years or more. At their heart I believe the goal of these laws were to insure that anyone who put idle lands to useful and profitable uses could benefit from their labor and not to have it revert to the previous owner who could then reap the profits of their labor. If you would like to learn more a couple of site that might be of interest are Hey! That’s my land! Understanding Adverse Possession and a simplified version of Wisconsin’s Adverse Possession statutes.
