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Don’t wait until the last minute to record your easements

By Nida Shakir
and Hal Karas
Whyte Hirschboeck Dudek

Nida Shakir

Nida Shakir

Hal Karas

Hal Karas

Forty or 60 years may seem like a generously 
long amount of time to re-record an easement, 
but for many Wisconsin property owners who are unaware of Wisconsin’s re-recording statute time is of the essence.

Wisconsin Statutes Sec. 893.33(6) provides a statute of limitations for an action enforcing a recorded easement. Under the statute, an action to enforce a recorded easement may not be brought unless three requirements are met:

  1. “an easement was created;
  2. “the easement is set forth in a recorded instrument; and
  3. “that instrument was recorded or ‘expressly referred to’ in another recorded instrument within the preceding 40 years” (or 60 years if the easement was created before 1980). TJ Auto LLC v. Mr. Twist Holdings LLC, 2013 AP 2119 (2014).

The requirements are straightforward, but in a recent Wisconsin appellate court decision, the court acknowledged that easement holders are uninformed of the requirement altogether.

TJ Auto LLC involves two 
adjacent property owners 
and an old easement. In
 1928, a recorded easement
 gave one of the lot owners 
the right to use an alley or 
driveway on an adjacent lot 
owner’s property. In 1945, the easement was referenced 
in a warranty deed. In 2006,
the current lot owner, TJ 
Auto, purchased the property 
that was subject to the easement.

TJ Auto knew that the easement was still used by the adjacent lot owner when it negotiated the purchase of the property, and yet, after purchasing the property, applied to the city of Kenosha and proposed a fence that would block the adjacent lot owner’s access to the easement.

The city of Kenosha denied TJ Auto’s proposal.

TJ Auto brought a lawsuit seeking a declaratory judgment terminating the easement. The court applied a plain reading of Wis. Stat. 893.33(6) and held that the easement was no longer enforceable against TJ Auto because it was never re-recorded after 1945. The neighbor lost access over TJ Auto’s property.

The takeaway: Recorded easements have expiration dates 
and it is important for easement holders to be aware of when their easements were recorded and when they will be up for renewal. There are a number of other questions that can arise when creating, granting, recording or re-recording easements.

For more information on how to navigate through the specific issues that can arise with easements, contact Nida Shakir at 414-978-5313 or nshakir@whdlaw.com, or Hal Karas at 414-978-5499 or hkaras@whdlaw.com.

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