Property – Easements – duration

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Wisconsin Court of Appeals

Civil

Property – Easements – duration

When the sixty-year period from the last recording of an easement expires, the easement became unenforceable under Wisconsin law against any subsequent purchaser, regardless of whether the purchaser had actual notice of the easement.

“WISCONSIN STAT. §  893.33 provides no exception to the limitations period for enforcement against a purchaser who had actual notice of the easement. In fact, the Judicial Council Committee’s Note accompanying the statute specifies the opposite: ‘There is no requirement that [a subsequent purchaser for valuable consideration who relies on this statute] be without notice, which is to be contrasted with [WIS. STAT. §] 706.09 of the statutes where periods far shorter than 30 years are specified in many subsections.’ Judicial Council Committee Note, 1979, § 893.33. The interaction between §§ 893.33(6) and 706.09(1)(k) was discussed in more detail in Turner, which explained that the thirty-year ‘title curative’ mechanism of § 706.09(1)(k) is not a statute of limitations but a particular affirmative defense, under which a bona fide purchaser of property who takes the property without any notice of an underlying claim is freed from that claim when the other requirements of § 706.09 are met. See Turner, 268 Wis. 2d 628, ¶16. Section 893.33(6), in contrast, simply states the ‘threshold requirements [for] an action’ to enforce an easement, in all cases. Turner, 268 Wis. 2d 628, ¶¶18, 22.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP2119 TJ Auto, LLC, v. Mr. Twist Holdings, LLC

Dist. II, Kenosha County, Kerkman, J., Brown, J.

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