Appeals court notes decision could seem ‘unfair’

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Wisconsin easement holders beware: If your express easement hasn’t been referenced in a recorded document in either 40 or 60 years, you could lose it.

That’s what happened when a 10-foot wide driveway easement over the rear property of TJ Auto LLC in Kenosha favoring owners of the Twisted Restaurant wasn’t mentioned for 68 years in any recorded document in Kenosha County.

In the recent decision TJ Auto v. Mr. Twist Holdings, 2013 AP 2119, the appellate court said it had to reverse the lower court’s decision in favor of Twist, even if the result might seem “counterintuitive or unfair” to some people.

If the restaurant’s easement failed to meet the demands of Wis. Stat. 893.33(6)(201-12), the Court of Appeals ruled, it was unenforceable as an express easement, and no amount of prior knowledge by TJ Auto could save it.

Case history

The defendant, Twist Holdings, owned the property at 7546 Sheridan Road for more than five years, using the land for the Twisted Restaurant on a continuous basis since 2006.

TJ Auto bought the property next to Twist at 7550 Sheridan Road later in 2006. According to court records, Tashe Bozinovski of TJ Auto found out about the easement through a 1988 survey that was on file at the Kenosha County Register of Deeds Office.

Bozinovski still moved forward with the purchase, but not without first working into the negotiations that the Twist easement substantially devalued the property and merited a purchase price reduction.

After the purchase, TJ approached the city of Kenosha to build a fence that would cut off Twist’s access to the easement. Their plans were rejected in part because TJ’s plans did not allow for continued use of the easement by Twist.

TJ filed suit for declaratory judgment, asking the Kenosha County court to terminate the 10-foot wide easement. Kenosha County Circuit Judge Chad Kerkman found in favor of Twist, and TJ appealed.

When the easement was created in 1928, according to TJ Auto’s brief on appeal, it was the only access to a small parking area at the back of a store. The easement was supposed to grant access for rear store deliveries and other vehicles that could not get access any other way.

But changes to the property in the past 20 years, including removal of a residential home on a nearby lot owned by Twist, created other ways for Twist customers and other vehicles to access the rear area.

Now, according to TJ’s brief, the easement was mainly used as a convenience and not as a necessity by Twist and the easement was placing a higher burden on the TJ property than before.

But according to testimony from Rhonda Bell, one of the owners of Twist, the access was much more than a convenience. It would be “crazy and dangerous,” she said, if the only access to the Twisted Restaurant was through Sheridan Road.

According to counsel for TJ Auto, however, the casual and convenient use of the 10-foot easement by Twist customers and other vehicles now is a far cry from the limited use and purpose of the easement when it was created almost 85 years ago. So, when the “particular purpose” that created the need to the easement disappeared, the easement should lapse as well, TJ counsel reasoned, citing Niefeldt v. Evans, 272 Wis. 362, (1956).

The only way Twist could continue to enforce the easement is if it complied with the three requirements of Wis. Stat. 893.33(6) (2011-12), asserted counsel for TJ Auto, namely: 1) the easement had to have been created, 2) the existence of the easement was set forth in a recorded document, and 3) the document was recorded, or “expressly referred to” in another document that was recorded in the last 60 years.

TJ Auto acknowledged that the easement had been created in 1928, and confirmed that the 10-foot easement had been mention in a recorded 1945 warranty transfer deed. But there was no reference to the easement in any recorded document for 68 years after that.

Although a 1988 certified survey had been filed with the local register of deeds office, according to TJ’s briefs, it had never actually been recorded through customary paperwork or stamps of a recorded document as required by Wis. Stat. 59.43(1)(e) and (f). It was just filed with the Kenosha registrar’s office, which was not enough to satisfy 893.33.

Counsel for Twist first argued that most of TJ’s documentation, presented as a more than 80-page affidavit and exhibits in response to summary judgment, was inadmissible due to a lack of proper foundation for admissibility at trial. Because they were inadmissible, TJ had failed to provide sufficient evidence that the 60-year limitation applied.

Additionally, according to Twist counsel, TJ’s affidavit package of “hearsay documentation” was accompanied by an inappropriate affidavit made by counsel for TJ himself, with legal reasoning and explanations in defense of the documentation, “some of which even contradicted testimony of his own witness.”

In addition to TJ’s evidentiary problems at summary judgment, counsel for Twist contended the law did not require that a change in the use of an easement should cause it to fail. The language of the original 1928 easement noted that it was “to be used as an alley or driveway to gain access to rear of store premises.” Twist alleged that just because there was a different owner, with a different type of business, those facts should not act to terminate the easement.

“An express easement does not end even when the necessity or purpose of the easement ceases,” said Twist, quoting AKG Real Estate LLC v. Kosterman, 2006 WI 106.

The real determinant must be whether the property is still being used as an alley or driveway, which it was, according to Twist, on a regular basis which was important to the restaurant. Also, the certified survey on file at the register of deeds should be enough to extend the statute past 2005.

Appeals court weighs in

The appellate court found that all of the supplemental documentation and evidence presented by both sides did not change the fact that there had not been another recorded document referencing the 10-foot easement in more than 68 years.

Once TJ Auto had brought the limitation issue up on appeal, according to the court, Twist had not shown that it could provide any further document or proof that could somehow extend the 60-year period.

And if the Wisconsin legislature wanted documents “filed” or “recorded” at the local register of deeds office to have the same meaning and impact, according to the court, it would have indicated that in statutory language. Instead, the initial statutory language was corrected in 1943 and changed from “filed” to “recorded.”

The law in Wisconsin involving the survival of easements is straightforward and definitive, according to the appellate court, if not seemingly always fair. The statute reads that “actions to enforce easements … set forth in any recorded instrument” are barred unless the underlying instrument was recorded within the statutory period, which here was 60 years.

No caveat or exception to that rule exists for litigants when a buyer such as TJ Auto has prior notice at the time of purchase, according to the court.

Thus, the appellate court reversed and remanded the summary judgment finding of the lower court, sending the case back with instructions to see if a prescriptive easement favoring Twist was shown by the evidence presented.