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Real Estate Law – Border Disputes

Adverse possession cases are common in Northeast Wisconsin and often arise when landowners survey their property and discover that a longstanding fence or building is encroaching on their property.

These cases are often emotionally charged. They are difficult to settle, which makes sense—after all, real estate is valuable. Human nature takes over and often both neighbors want to fight for (what each of them believe) to be their land. As the brilliant jurist Oliver Wendell Holmes observed over 100 years ago, after owning property for a long time it “takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it.”  Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 477 (1897).

In Wisconsin, the law of adverse possession governs these border dispute issues. These cases are very complicated and involve mixed and complex issues of fact and law.  No two cases are alike. Very generally speaking, one claiming adverse possession must prove the following elements in order to succeed:

  • Actual and continuous occupation of property under claim of title;
  • Exclusive of any other right; and
  • The property must be protected by a substantial enclosure or usually cultivated or improved.

All the above elements must occur for the duration of a “statutory period” which is generally 20 years, however, under certain “color of title” (not to be confused with claim of title) claims the statutory period is 10 years or 7 years, depending on the circumstances. In order to demonstrate continuous possession an adverse possessor may “tack” his time of possession to that of his predecessor in interest. However, in order to benefit from “tacking” the adverse claimant must be shown to be in privity with any prior adverse possessor, and the prior possession must be actually adverse. The evidence for adverse possession must be clear and the court will make all reasonable presumptions in favor of the true owner.

Over the years, the Court of Appeals and Wisconsin Supreme Court has issued many decisions separately analyzing every one of the above referenced elements. If any of the above elements are unproven, the adverse possessor will be unable to succeed in the claim. Detailed knowledge of every one of these cases is essential to properly analyzing an adverse possession case.

Speak with an experienced Wisconsin real estate attorney if you are facing a border dispute issue. The sooner you talk to an attorney, the greater your chances are of resolving the issue before heading to costly litigation.