By Steven P. Lipowski
March 16, 2020
Under a long-standing law in Wisconsin, those parties holding easements will need to re-record their easement rights periodically or their ability to enforce those easements will be lost.
Even easements that are “perpetual” by their written terms will expire if they are not re-recorded within the prescribed statutory period.
The Wisconsin Court of Appeals has in the TJ Auto, LLC v. Mr. Twist Holdings, LLC case interpreted the applicable statute of limitations set forth in Wis. Stat. § 893.33(6) 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 enforceable. This holds true even if you purchased the property during the easement’s lifespan, did not know about the statute, used the easement after its statutory expiration without any objection from the owner of the land burdened by that easement, or even if the landowner has full knowledge of the existence of the easement.
The relevant section of the Wisconsin Statutes has a two important components which give guidance to easement holders based on whether their easement was recorded prior to or after July 1, 1980. These provisions are summarized as follows:
- Easements Recorded Prior to July 1, 1980. Under Wis. Stat. § 893.33(8), easements recorded prior to July 1, 1980 expire upon the earlier of 60 years after their recording date or 40 years after July 1, 1980, unless they are re-recorded. As a result, 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. As such, it is possible these easements may be already expiring.
- Easements Recorded On or After July 1, 1980. Wis. Stat. § 893.33(6) states that written easements recorded on or after July 1, 1980 expire 40 years after their recording date, unless they are re-recorded. Therefore, these easements will not begin to expire until June 30, 2020.
Both grantees and grantors of easements should be aware of an easement’s expiration date. Grantees must re-record their easements in a timely manner to extend its enforceability for an additional 40 years and avoid the risk of losing their rights. At the same time, grantors should be aware of the expiration dates of any easement burdening their property in the event they want to take action when the easement’s expiration date has passed.
If you benefit from or are subject to an easement, Ruder Ware’s experienced real estate practice group can review easements and documents affecting your property and provide counsel on your easement rights.
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