Statute of Limitations for Easements
Author: Attorney John R. Orton
Contrary to popular opinion, some easements do not last forever. Section 893.33(6) Wis. Stats. provides a clear statute of limitations for the enforcement of a recorded easement.
In TJ Auto LLC v. Mr. Twist Holdings LLC, 2014 WI App 81, 355 Wis.2d 517 (2014), 851 N.W.2d 831, TJ Auto bought some property in 2006, which was subject to an easement recorded 78 years before, in 1928. The easement allowed vehicles ingress and egress across the TJ Auto property for an adjacent restaurant. This 1928 easement was referenced in a 1945 deed, but thereafter, no further references were made to the easement in any recorded instrument. TJ Auto bought the property subject to the easement, and TJ Auto was aware of the easement which, was being actively used at the time of purchase.
The court held that §893.33(6) imposes a statute of limitations on easements:
Wisconsin Stat. § 893.33(6) provides a statute of limitations for “an action to enforce a recorded easement.” Turner v. Taylor, 2003 WI App 256, ¶ 15, 268 Wis.2d 628, 673 N.W.2d 716. Such an action is barred unless three threshold 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 refer[ed] to” in another recorded instrument, within the preceding forty years (or longer, for easements created before §893.33 took effect in 1980). See § 893.33(6), (8); see also Turner, 268 Wis.2d 628, ¶¶ 18, 22, 673 N.W.2d 716.
TJ Auto LLC v. Mr. Twist Holdings LLC, 2014 WI App 81, ¶ 11, 355 Wis. 2d 517, 522, 851 N.W.2d 831, 834.
Furthermore, it made no difference that TJ Auto had notice of the easement when it purchased the property. Actual notice of the easement was not a bar to enforcement of the statute of limitations. Id. at ¶12.
The court also held that to extend the duration of the easement under the statute, the easement must be set forth in a “recorded instrument” within the limitations period. In TJ Auto, there was a 1988 survey filed (but not recorded) with the register of deeds. The court held that such a “filing” did not constitute a “recording” to satisfy the statute and extend the time.
Therefore, for easements recorded before 1980, the statute of limitations is 60 years. For easements recorded after adoption of the 1980 revisions to §893.33(6), the statute of limitations is 40 years. Of course, these limitations can be extended by recording, before time expires, an instrument which specifically refers to the easement.
Please review the statute for other terms, conditions and exceptions. For example, since TJ Auto was decided, the legislature has established an exception for conservation easements granted to the State. Section 893.33(6m) reads: “This section does not apply to any interest in a conservation easement under s. 700.40.”