Easements

Unlike the immortal jellyfish, easements do not last forever


 From the Wisconsin Land Title Association  |    June 08, 2020
Easements

The Wisconsin Land Title Association graciously prepared the following general FAQ regarding private ingress/egress easements in Wisconsin, in response to the request of the Wisconsin REALTORS® Association. This FAQ is informative but does not take the place of legal advice. If members or their clients and customers have questions about the existence or enforceability of a particular easement, they are strongly encouraged to seek the advice of a qualified real estate attorney. 

We hear that there are concerns about the expiration of easements. What’s happening?

The brief answer to this question is yes, easements do not live forever and do have expiration periods.

By way of background, an express easement is an interest in real property that gives someone the right to use another person’s property — a right which is not automatic and must be in writing. Most often, these easements are used for access to landlocked parcels, so this Q&A will generally cover issues related to access easements.

In order to memorialize the easement, best preserve the rights of the owner of the property using the easement (called the “benefited property”), and provide public notice of the right to use the property the easement crosses (called the “burdened property”), the easement agreement should be recorded with the Register of Deeds in the county where the property is located. Wis. Stat. § 893.33 has long required that to continue the effectiveness of an easement, another instrument must be timely recorded expressly referring to the original easement (“re-recorded”), even if the original easement on its face says it never expires. Until July 1, 1980, the requirement to re-record was 60 years. That meant the easement had to be put of record at least every 60 years or it was no longer enforceable.

In the late 1970s, the Wisconsin Legislature changed the statute so that on July 1, 1980, the 60-year re-recording period was reduced to 40 years. Easements recorded on and after July 1, 1980, are enforceable for 40 years, unless properly extended. The legislative change also meant that any document initially covered by the 60-year recording requirement now, at least arguably, has to be re-recorded on or before July 1, 2020. In other words, documents recorded between July 1, 1960, and June 30, 1980, appear to have the shortened period of 40 years for re-recording of, at the latest, June 30, 2020. That date, June 30, 2020, is now upon us.

The seller has a property benefited by an easement recorded in 1970. How does he make sure it continues?

Many easements recorded between July 1, 1960, and June 30, 1980, may not be enforceable unless properly re-recorded on or before June 30, 2020. Thus the best practice would be to re-record the easement now to continue its enforceability, or alternatively the parties can enter into a new easement. Property owners should consult an attorney to assist.

How does a property owner re-record the easement to restart the statute of limitations?

Unfortunately, the statute does not provide specific guidance on re-recording. In part, the statute states that, “… the timely recording of an instrument expressly referring to the easements …” will operate to restart the statute of limitations for another 40 years. Although vague, there are some best practices that should be considered, and we strongly encourage the parties to contact their attorney to assist in maintaining the enforceability of easements. 

One option to consider for the re-recording would be to create an affidavit with the owner’s attorney that says the easement is being re-recorded for purposes of complying with the statute and attach a copy of the original easement. To ensure that the re-recorded easement can be found in the public records by all affected parties, it would be best practice to properly identify the current owners of the land (both benefited by the easement and burdened by the easement) and the legal descriptions of the property (both of the benefited parcel and the burdened parcel) in the affidavit.

Additionally, if a property owner is conveying a parcel for a new transaction now and the property being conveyed is benefited by an access easement, they should strongly consider having the new deed drafted with a specific reference to the recording data of the previous easement and including the legal description of the easement area if available.

What happens if the easement is not timely re-recorded?

If not timely and properly re-recorded, the easement probably is no longer enforceable as originally intended. It is strongly advisable to consult an attorney before placing anything of record. 

How will this impact the ability to get title insurance?

This is very fact intensive, but where the easement was not timely re-recorded, it is likely a title company will not be able to provide insurance that the easement is enforceable or ensure that the property has legal access. It is also important to know, in most cases, that the title insurance policy only insures issues prior to the date of policy. 

Does the statute of limitation for easement enforcement apply to all types of easements?

No. There are a number of different easements this statute does not currently apply to, with certain conservation easements, utility easements and easements benefiting railroads being a few of the named exceptions. 

Where can one get more information about easements?

Generally Wisconsin access easement law is set forth in Wis. Stat. § 706.02, § 893.33 and case law interpreting those statutes. Whether an easement is or is not enforceable typically is fact intensive and many times must be vetted through the courts when neighbors are in a disagreement.

As to whether a particular easement either benefits or burdens a particular property, a party may want to review its title insurance policy or engage a local title insurance company that can provide a search of the property for a fee. Finally, as to the scope of the easement or whether the easement is enforceable, consult with an attorney.

DISCLAIMER: The information contained in this article is solely for general interest. This information is general in nature and is presented without any warranty or representation. This article should not be relied or acted upon or construed as legal advice and is not a substitute for obtaining legal advice from an attorney licensed in Wisconsin. 

Founded in 1906, the Wisconsin Land Title Association (WLTA) is an association dedicated to the advancement of the profession of evidencing title to real property. WLTA members consist of a cross section of real estate professionals including title insurance agents and underwriters, attorneys, REALTORS®, mortgage lenders and registers of deeds. The WLTA aligns itself with other associations and organizations to streamline homeownership and transfers of real property. 

Resources

Learn more about easements from the following WRA resources:

Copyright 1998 - 2020 Wisconsin REALTORS® Association. All rights reserved.

Privacy Policy   |   Terms of Use   |   Accessibility   |   Real Estate Continuing Education