A
recent decision by the Wisconsin Court of Appeals in TJ Auto, LLC v. Mr. Twist Holdings, LLC, 2014 WI App 81, has
called into question the assumption held by many property owners that their
written easement will continue to be legally enforceable for the foreseeable
future and will not need to be recorded.
The Court of Appeals has concluded otherwise. That is, the Court of Appeals has interpreted
the statute of limitations set forth in Section 893.33(6) of the Wisconsin
Statutes to require property owners to re-record their easement rights within
40 years of the original grant of easement, or risk the legal conclusion that
the easement is no longer legally enforceable.
This applies even if the party that owns the property that is burdened
by the easement has full knowledge of the existence of the easement itself.
Therefore,
for any property owners who wish to preserve the benefit of a written easement
that was recorded before July 1, 1980, the property owner has a period of 60
years in which to re-record the easement.
For easements recorded after July 1, 1980, the statute of limitations
period within which you must re-record the easement is 40 years.
This
is a significant decision by the Wisconsin Court of Appeals that has gone
largely unnoticed thus far. My recent
discussion with the Register of Deeds in a county in which I practice disclosed
that they were not aware of this development.
Anyone seeking further advice to protect their rights in an easement
that benefits their property should contact their attorney to preserve their
rights.
Attorney
Allen W. Larson
Bender,
Levi, Larson & Associates, S.C.
(920)
261-7626
www.benderlevilarson.com
