State Codes and Statutes

Statutes > Wisconsin > 893 > 893.26

893.26

893.26 Adverse possession, founded on recorded written instrument.

893.26(1)

(1) An action for the recovery or the possession of real estate and a defense or counterclaim based upon title to real estate are barred by uninterrupted adverse possession of 10 years, except as provided by s. 893.14 and 893.29. A person who in connection with his or her predecessors in interest is in uninterrupted adverse possession of real estate for 10 years, except as provided by s. 893.29, may commence an action to establish title under ch. 841.

893.26(2)

(2) Real estate is held adversely under this section or s. 893.27 only if:

893.26(2)(a)

(a) The person possessing the real estate or his or her predecessor in interest, originally entered into possession of the real estate under a good faith claim of title, exclusive of any other right, founded upon a written instrument as a conveyance of the real estate or upon a judgment of a competent court;

893.26(2)(b)

(b) The written instrument or judgment under which entry was made is recorded within 30 days of entry with the register of deeds of the county where the real estate lies; and

893.26(2)(c)

(c) The person possessing the real estate, in connection with his or her predecessors in interest, is in actual continued occupation of all or a material portion of the real estate described in the written instrument or judgment after the original entry as provided by par. (a), under claim of title, exclusive of any other right.

893.26(3)

(3) If sub. (2) is satisfied all real estate included in the written instrument or judgment upon which the entry is based is adversely possessed and occupied under this section, except if the real estate consists of a tract divided into lots the possession of one lot does not constitute the possession of any other lot of the same tract.

893.26(4)

(4) Facts which constitute possession and occupation of real estate under this section and s. 893.27 include, but are not limited to, the following:

893.26(4)(a)

(a) Where it has been usually cultivated or improved;

893.26(4)(b)

(b) Where it has been protected by a substantial enclosure;

893.26(4)(c)

(c) Where, although not enclosed, it has been used for the supply of fuel or of fencing timber for the purpose of husbandry or for the ordinary use of the occupant; or

893.26(4)(d)

(d) Where a known farm or single lot has been partly improved the portion of the farm or lot that is left not cleared or not enclosed, according to the usual course and custom of the adjoining country, is considered to have been occupied for the same length of time as the part improved or cultivated.

893.26(5)

(5) For the purpose of this section and s. 893.27 it is presumed, unless rebutted, that entry and claim of title are made in good faith.

893.26 - ANNOT.

History: 1979 c. 323; 1981 c. 314; 1997 a. 254.

893.26 - ANNOT.

Judicial Council Committee's Note, 1979: This section collects in one place all material relating to 10-year adverse possession, integrating previous ss. 893.06 and 893.07, together with part of previous s. 893.10. Several language changes are the same as in s. 893.25, and the comments in the note following that section apply here. Three changes may work some change in substance, and should be particularly noted:

893.26 - ANNOT.

Sub. (2) (a) requires original entry on the adversely possessed premises to be "in good faith," language not included in the previous s. 893.06. The addition is designed to make clear that one who enters under a deed, for example, knowing it to be forged or given by one not the owner, should not have the benefit of the 10-year statute. Some Wisconsin case law (contrary to the nationwide weight of authority) suggests otherwise, and the change is intended to reverse these cases. See Polanski v. Town of Eagle Point, 30 Wis. 2d 507, 141 N.W.2d 281 (1966); Peters v. Kell, 12 Wis. 2d 32, 106 N.W.2d 407 (1960); McCann v. Welch, 106 Wis. 142, 81 N.W. 996 (1900). Note, however, that good faith is required only at the time of entry, and need not continue for the full 10 years of adverse possession.

893.26 - ANNOT.

Sub. (2) (b) adds a requirement not contained in previous s. 893.10 that the written instrument or judgment under which original entry is made must be recorded within 30 days after the entry.

893.26 - ANNOT.

Sub. (2) (c) adds the requirement that the adverse possession be of all or "a material portion" of the premises described in the written instrument or judgment, replacing "some part" found in previous s. 893.06. This probably represents no change in present law, but is intended to make clear that possession of an insubstantial fragment of land described in a written instrument will not suffice as constructive possession of all the land described. [Bill 326-A]

893.26 - ANNOT.

When a deed granted a right-of-way but the claimed use was of a different strip, no right based on use for 10 years was created. New v. Stock, 49 Wis. 2d 469, 182 N.W.2d 276 (1971).

893.26 - ANNOT.

The doctrine of "tacking" allows an adverse possession claimant to add his or her time of possession to that of a prior adverse possessor if the claimant is in privity with the prior adverse possessor. Adverse possession of land uncovered by the recession of a body of water is discussed. Perpignani v. Vonasek, 139 Wis. 2d 695, 408 N.W.2d 1 (1987).

893.26 - ANNOT.

For purposes of determining a "claim of title," a deed based on a recorded official government survey meets the requirements of this statute. Ivalis v. Curtis, 173 Wis. 2d 751, 496 N.W.2d 690 (Ct. App. 1993).

893.26 - ANNOT.

Hey! That's my land! Understanding Adverse Possession. Shrestha. Wis. Law. March 2010.