My question involves real estate located in the State of Wisconsin, USA.
I bought a property with some forest land a few months ago. There is a neighbour that claims access to my property (he goes through it to access the main county snowmobile trail).
Today he gave us a copy of a Quit Claim Deed between his wife and her ex-husband regarding passage through the middle of my property. It was notarized in 1988.
It was never filed/converted to an easement (we know that because it did not come up when we bought the house, and the previous owner told us he looked into the public records in 1994 and it was not there, he did not deny access then because he did not want to spend money in a lawyer).I think the neighbour just filed for an easement this week after we denied him access (I placed a gate on the trail), and he reportedly was told the path through our property will come out in the county maps this January.
His property is NOT landlocked. He uses my property just as a shortcut to the snowmobile trail, which he could perfectly access taking the regular trails that go in front of his house, it would take him 5 extra minutes.
He has been doing this for over 20 years.
This guy has left a cemetery of beer cans in my property, so I fear he'll DUI when on his snowmobile.Will our mortgage bank, real state agency or Title Services company involved in the purchase of the property back us up?
What are our rights here? What are the chances of him getting his way in court?
Do we need to lawyer up?
Question on real estate dispute
by Gerard 19 Replies latest jw friends
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Gerard
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badseed
get yourself a 4 wheeler and start driving all around his property, especially the front lawn..don't forget the empties too. Sometimes being a bigger asshole than these people is the only way to get them to understand logic. btw, you could use the excitement.
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notverylikely
If there is no easement, he has no case, generally speaking. If his land is not landlocked, he has zero case. Call the sheriff on him.
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Nathan Natas
You need to get a real estate attorney, not an XJW discussion/comedy group.
This is serious.
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badseed
absolutely
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Gerard
You need to get a real estate attorney, not an XJW discussion/comedy group. This is serious.
Sure we will lawyer up on Monday. Sh!t hit the fan today (Saturday) so I have to wait till Monday. In the mean time I already had the sheriff involved and he told my neigbour to keep off my private property until the dispute is settled. The gate remains in place. 12 hours ago I was unaware of the word "easement". I can't believe that in USA our NEW gorgeous lake-front private property could legally stop being private just because it can be a convenient snowmobile shortcut to a neigbour. I am already educating myself online on easements and I also posted here as there may be a real state lawyer in this forum, we do have ex-JWs that are certified experts in may fields.
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Scully
It seems to me that the neighbour is not "just" using your property as a shortcut. If he's littering on your property, he should be subject to fines for that. If you're having to clean up his trash, then he's using your property as a dump. It's clear to me that he doesn't respect you, your property or your rights. He just wants what he wants, when he wants it.
Maybe you can have a search of records done again (yes, it might be costly) to be absolutely certain that your neighbour's claim of "easement" is not valid. Just because he's claiming to have had the document on record since 1988 (without any corresponding dispute(s) by the previous landowner(s)) doesn't mean that his say-so is valid.
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exwhyzee
If in fact there is an easement agreement or Quit Claim Deed that wasn't revealed in your original title search, there may be compensation due from the title insurance company that was involved when you purchased the property. That's what it's there for to cover any defects in the title that may cause the lender or owner any monitary loss etc.
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AGuest
Ooooh, some of ya'll really should stop trying to give legal advice - LOLOLOLOLOL!
You need a real estate attorney, dear Gerard (peace to you!). Please note that I am NOT a lawyer and so what I am sharing with you here is NOT legal advice. It is just an explanation of what could be going on and what your options MIGHT be. Okay, then:
If what you've share here is accurate, you are either dealing with what's referred to as an "adverse possession, founded on recorded instrument," under Section 893.26 of the Wisconsin Code, or a "prescriptive easement" under Section 893.28 of the Code.
Section 893.26 states:
893.26 Adverse possession, founded on recorded written instrument.
(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 .
(2) Real estate is held adversely under this section or s. 893.27 only if:
(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;(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
(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.
(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.(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
(a) Where it has been usually cultivated or improved;
(b) Where it has been protected by a substantial enclosure;
(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
(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.
(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.Section 892.28 states:
893.28 Prescriptive rights by adverse user.
(1) Continuous adverse use of rights in real estate of another for at least 20 years, except as provided in s. 893.29 establishes the prescriptive right to continue the use. Any person who in connection with his or her predecessor in interest has made continuous adverse use of rights in the land of another for 20 years, except as provided by s. 893.29, may commence an action to establish prescriptive rights under ch. 843.
(2) Continuous use of rights in real estate of another for at least 10 years by a domestic corporation organized to furnish telegraph or telecommunications service or transmit heat, power or electric current to the public or for public purposes, by a cooperative association organized under ch. 185 or 193 to furnish telegraph or telecommunications service, or by a cooperative organized under ch. 185 to transmit heat, power or electric current to its members, establishes the prescriptive right to continue the use, except as provided by s. 893.29 . A person who has established a prescriptive right under this subsection may commence an action to establish prescriptive rights under ch. 843 .
(3) The mere use of a way over unenclosed land is presumed to be permissive and not adverse.Your neighbor will claim an adverse possession by written instrument under Section 893.26; however, a possible "out" for you would be subsection (2)(b) which seems to indicate that your neighbor had 30 days from the date of the Quit Claim Deed to record it for it to now be valid. Of course, if you say nothing, then nothing happens - his recent recordation (which I assume occurred based on his applying for the easement) would stand. If you oppose it, however, you might be able to do so on these grounds (not recorded within 30 days).
If your neighbor loses his adverse possession claim, he may then try to say he has a "prescriptive easement" under Section 893.28. There, however, you might have an out with Section 893.28(3), which states :
" The mere use of a way over unenclosed land is presumed to be permissive and not adverse." Note, this is the case with a Section 893.28 claim, but not with a Section 893.26 claim.
Another out may be that in order for the possession to be "adverse" the previous owner couldn't have known about it (although everyone else did) due to something like absence from the land or incapacity, or must have opposed it. Your post, however, indicates the opposite: that he (the direct previous owner) did know, but didn't have a problem. So the possession wasn't "adverse", at least with regard to him. If that is the case, the 20-year period (for Section 893.28) might not apply as the time would have "tolled" when the last owner came to know about the use. Which could have stated the possession period with you (and thus making it less than the required 20 years). Again, though, that is with regard to Section 893.28; for Section 893.26, it's only a 10-year period (which you're still okay for if it starts with you... but perhaps not if it starts with the previous owner).
Bottom line: speak with a real estate attorney. It could be too late, but since the Deed wasn't filed until recently (and so, the recordation of YOUR deed... which came BEFORE he recorded his Quit Claim Deed... may trump)... and the possession was not "adverse" as to the previous owner (so that the 10- or 20-year possession periods may have "tolled" so that it starts with your possession), you might have a case against the eastment being granted. Keep in mind, states combine ownership years so the 10/20-year possession periods may stand.
Find an attorney that'll give you a "free" initial consultation. That way, you can find out in 15-30 minutes whether you even can pursue the matter, without paying a retainer. If you can, then you've gotten 15-30 minutes of his/her time for free.
I hope it works out for you... and, again, peace to you!
A slave of Christ,
SA
A court will most probably have to determine whether it is adverse possession (with writing) or prescriptive easement. -