Wisconsin Offers New Safe Harbor for Old Access Rights

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April 20, 2022

Over the past several years, many commentators, including members of this firm, have written extensively about the potential loss of recorded easement (or similar) rights due to the passage of time and lack of public notice.  Recently, the alarm was raised because of specific provisions within the Wisconsin Statutes that were read to deem easements or recorded restrictions (created more than forty years ago) were possibly no longer enforceable.  The statutes required owners of such recorded easements or restrictions to effectively “refresh” the easement or restriction by re-recording the easement or otherwise filing a notice of its existence (unless the easement or restriction had subsequently been identified in some recorded document).

This situation resulted in many property owners in Wisconsin facing the specter that their access rights to property had inadvertently been allowed to expire since they had done nothing to refresh these rights in the past forty years.

The State of Wisconsin attempted to come to the rescue this year.

2021 Wisconsin Act 174 (the “Act”), which became effective March 13, 2022, has created a new safe harbor for some access rights owners. Essentially, the Act provides rights owners can “travel across another’s land to reach a location” or for another “specified purpose,” and are allowed to continue to assert those rights so long as (a) the rights were specified in a recorded instrument on or after January 1, 1960, (b) the rights were specified in an instrument recorded before January 1, 1960 and a notice of the existence of this instrument was referenced in some other recorded document filed after January 1, 1960, or (c) the rights were granted in an instrument recorded before January 1, 1960 and it is apparent, or can be proven by physical evidence, that rights were being used at the time a party acquired the property subject to the easement.

The Act goes on to expressly retroactively apply to legal actions that may have already been undertaken between parties with respect to the enforcement or termination of access or similar rights.  It is too late for situations where a final judgement has already been obtained.

It should be noted that this new Act appears to be focused on access rights and does nothing to address restrictive covenants that may have lapsed.  Further, it still requires owners of access rights founded on written instruments recorded prior to January 1, 1960 to undertake recording notice of the existence of these rights if they have not done anything to improve this access (such as by building a road or path).

It is not clear from the record if this new Act will be read broadly enough to apply to other activities beyond traveling across land since there is not clarification around what is intended by the wording of “another specified purpose.”

What is clear is that many owners of recorded access rights can breathe easier thanks to this new safe harbor.

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