By Attorney Attorney Jack W. Rettler, Schloemer Law Firm, S.C.
Under Wisconsin law, a trespasser can sometimes gain legal ownership to land by occupying it under a doctrine called ‘adverse possession’ if certain elements are met. For example, if a neighbor places a fence or building over a property line or farms over a property line, and this practice continues for over 20 years and other requirements are met, the neighbor can end up owning that part of your property that they have been using.
The physical character of the possession is key—and the use of the land must be open, notorious, visible, exclusive, hostile and continuous, such as would apprise a reasonably diligent landowner and the public that the possessor claims the land as his own.
The adverse possession must be sufficiently open and obvious to have apprised the title holder of both the fact of the possession and the intent to exclude others from possession.
It’s important to understand how the above terms have been defined through case law. Below is a summary of the various elements of adverse possession as described in the Wisconsin Jury Instructions:
“Hostile” does not mean a deliberate, willful, or unfriendly intent. If the characteristics of open, notorious, exclusive, and continuous possession are satisfied, the law presumes the element of hostile intent. “Hostile” means that the person in actual possession of the land claims exclusive right to it.
Land is “actually occupied” when it is used in a way it is ordinarily capable of being used and in such a manner as an owner would use it. Actual occupation is not limited to structural encroachment, although that it is a common physical characteristic of possession.
The requirement of “substantial enclosure” must alert a reasonable person of a dispute over the land. “Usually cultivated or improved” means the one in possession has put the land to the same kind of use that a title holder might generally put the land.
The title holder will always be presumed to be in possession of the land claimed by the adverse possessor. Thus, the burden is on the adverse possessor to establish the claim.
Finally, the adverse possessor has the burden of proof to clearly define the area of land claimed to be adversely possessed. While absolute precision or utilization of a surveyor is not required to establish lines of occupancy, the evidence must provide a reasonably accurate basis upon which to determine the boundary of the land adversely possessed.
If you think you have a claim for adverse possession, or are concerned that your neighbor may be trying to adversely possess your land, we can help. Please contact this article’s author Attorney Jack Rettler at 262-334-3471 or [email protected], or one of our Real Estate Attorneys. We frequently represent individuals and landowners in their legal disputes, focusing primarily on providing real estate legal services in Washington, Ozaukee, Dodge, and Fond du Lac County and the communities of West Bend, Jackson, Slinger, Hartford, Kewaskum and other surrounding communities.
Originally published: August 8, 2022.
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Disclaimer: The information contained in this post is for general informational purposes only and is not legal advice. Due to the rapidly changing nature of law, Schloemer Law Firm makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your unique circumstances before deciding to take—or refrain from taking—any action. If you need legal guidance, please contact us at 262-334-3471 or [email protected].