Section 893.33. Action concerning real estate.

 

(1)  In this section “purchaser" means a person to whom an estate, mortgage, lease or other interest in real estate is conveyed, assigned or leased for a valuable consideration.

(2)  Except as provided in subs. (5) to (9) , no action affecting the possession or title of any real estate may be commenced, and no defense or counterclaim may be asserted, by any person, the state or a political subdivision or municipal corporation of the state after January 1, 1943, which is founded upon any unrecorded instrument executed more than 30 years prior to the date of commencement of the action, or upon any instrument recorded more than 30 years prior to the date of commencement of the action, or upon any transaction or event occurring more than 30 years prior to the date of commencement of the action, unless within 30 years after the execution of the unrecorded instrument or within 30 years after the date of recording of the recorded instrument, or within 30 years after the date of the transaction or event there is recorded in the office of the register of deeds of the county in which the real estate is located, some instrument expressly referring to the existence of the claim or defense, or a notice setting forth the name of the claimant, a description of the real estate affected and of the instrument or transaction or event on which the claim or defense is founded, with its date and the volume and page of its recording, if it is recorded, and a statement of the claims made. This notice may be discharged the same as a notice of pendency of action. Such notice or instrument recorded after the expiration of 30 years shall be likewise effective, except as to the rights of a purchaser of the real estate or any interest in the real estate which may have arisen after the expiration of the 30 years and prior to the recording.

(3)  The recording of a notice under sub. (2) , or of an instrument expressly referring to the existence of the claim, extends for 30 years from the date of recording the time in which any action, defense or counterclaim founded upon the written instrument or transaction or event referred to in the notice or recorded instrument may be commenced or asserted. Like notices or instruments may thereafter be recorded with the same effect before the expiration of each successive 30-year period.

(4)  This section does not extend the right to commence any action or assert any defense or counterclaim beyond the date at which the right would be extinguished by any other statute.

(4r)  This section applies to liens of the department of health services on real property under ss. 46.27 (7g) , 49.496 , 49.682 , and 49.849 .

(5)  This section bars all claims to an interest in real property, whether rights based on marriage, remainders, reversions and reverter clauses in covenants restricting the use of real estate, mortgage liens, old tax deeds, death and income or franchise tax liens, rights as heirs or under will, or any claim of any nature, however denominated, and whether such claims are asserted by a person sui juris or under disability, whether such person is within or without the state, and whether such person is natural or corporate, or private or governmental, unless within the 30-year period provided by sub. (2) there has been recorded in the office of the register of deeds some instrument expressly referring to the existence of the claim, or a notice pursuant to this section. This section does not apply to any action commenced or any defense or counterclaim asserted, by any person who is in possession of the real estate involved as owner at the time the action is commenced. This section does not apply to any real estate or interest in real estate while the record title to the real estate or interest in real estate remains in a railroad corporation, a public service corporation as defined in s. 201.01 , an electric cooperative organized and operating on a nonprofit basis under ch. 185 , a natural gas company, as defined in 15 USC 717a (6), or any trustee or receiver of a railroad corporation, a public service corporation, an electric cooperative, or a natural gas company, or to claims or actions founded upon mortgages or trust deeds executed by that cooperative, corporation, company, or trustees or receivers of that cooperative, corporation, or company. This section also does not apply to real estate or an interest in real estate while the record title to the real estate or interest in real estate remains in the state or a political subdivision or municipal corporation of this state.

(6)  Actions to enforce easements, or covenants restricting the use of real estate, set forth in any recorded instrument shall not be barred by this section for a period of 40 years after the date of recording such instrument, and the timely recording of an instrument expressly referring to the easements or covenants or of notices pursuant to this section shall extend such time for 40-year periods from the recording.

(6m)  This section does not apply to any interest in a conservation easement under s. 700.40 .

(7)  Only the following may assert this section as a defense or in an action to establish title:

(a) A purchaser of real estate; or

(b) A successor of a purchaser of real estate, if the time for commencement of an action or assertion of a defense or counterclaim under this section had expired at the time the rights of the purchaser in the real estate arose.

(8)  If a period of limitation prescribed in s. 893.15 (5) , 1977 stats., has begun to run prior to July 1, 1980, an action shall be commenced within the period prescribed by s. 893.15 , 1977 stats., or 40 years after July 1, 1980, whichever first terminates.

(9)  Section 893.15 , 1977 stats., does not apply to extend the time for commencement of an action or assertion of a defense or counterclaim with respect to an instrument or notice recorded on or after July 1, 1980. If a cause of action is subject to sub. (8) the recording of an instrument or notice as provided by this section after July 1, 1980 extends the time for commencement of an action or assertion of a defense or counterclaim as provided in this section, except that the time within which the notice or instrument must be recorded if the time is to be extended as to purchasers is the time limited by sub. (8) .

1979 c. 323 ; 1981 c. 261 ; 1985 a. 135 ; 1987 a. 27 , 330 ; 1991 a. 39 ; 1997 a. 140 ; 1999 a. 150 ; 2009 a. 378 , 379 ; 2013 a. 20 , 92 .

Note

See note following s. 700.40. Microsoft Windows NT 6.1.7601 Service Pack 1 Judicial Council Committee's Note, 1979 [deleted in part]: This section is based primarily on previous 893.15. That section, an interesting combination of limitations statute and marketable title statute, was of significant help to real estate titles since enactment in 1941. The beneficial effects were strengthened and expanded by enactment of s. 706.09 in 1967. This draft preserves the useful essence of previous s. 893.15, while updating some language. Changes which affect substance are: Microsoft Windows NT 6.1.7601 Service Pack 1 (1) The 60-year provision relating to easements and covenants is reduced to 40 years. Microsoft Windows NT 6.1.7601 Service Pack 1 (2) New subs. (8) and (9) are transitional provisions applying to limitation periods already running the period specified in previous s. 893.15, or the period in this statute, whichever is shorter. Microsoft Windows NT 6.1.7601 Service Pack 1 (5) This draft makes explicit that only those who purchase for valuable consideration after the period of limitation has run or their successors may avail themselves of the benefits of this statute. There is no requirement that the purchaser be without notice, which is to be contrasted with s. 706.09 of the statutes where periods far shorter than 30 years are specified in many subsections. [Bill 326-A] Microsoft Windows NT 6.1.7601 Service Pack 1 “Transaction or event" as applied to adverse possession means adverse possession for the time period necessary to obtain title. Upon expiration of this period, the limitation period begins running. Leimert v. McCann, 79 Wis. 2d 289 , 255 N.W.2d 526 (1977). Microsoft Windows NT 6.1.7601 Service Pack 1This section protects purchasers only. State v. Barkdoll, 99 Wis. 2d 163 , 298 N.W.2d 539 (1980). Microsoft Windows NT 6.1.7601 Service Pack 1 A public entity landowner was not protected from a claim that was older than 30 years. State Historical Society v. Maple Bluff, 112 Wis. 2d 246 , 332 N.W.2d 792 (1983). Microsoft Windows NT 6.1.7601 Service Pack 1 Hunting and fishing rights are an easement under sub. (6). There is no distinction between a profit and an easement. Figliuzzi v. Carcajou Shooting Club, 184 Wis. 2d 572 , 516 N.W.2d 410 (1994). Microsoft Windows NT 6.1.7601 Service Pack 1 If a nuisance is continuing, a nuisance claim is not barred by the statute of limitations; but if it is permanent, it must be brought within the applicable statute period. A nuisance is continuing if it is ongoing or repeated but can be abated. A permanent nuisance is one act that causes permanent injury. Sunnyside Feed Co., Inc. v. City of Portage, 222 Wis. 2d 461 , 588 N.W.2d 278 (Ct. App. 1998), 98-0709 . Microsoft Windows NT 6.1.7601 Service Pack 1 The sub. (5) owner-in-possession exception to the sub. (2) 30-year recording requirement applies to adverse possession claims. O'Neill v. Reemer, 2003 WI 13 , 259 Wis. 2d 544 , 657 N.W.2d 403 , 01-2402 . See also O'Kon v. Laude, 2004 WI App 200 , 276 Wis. 2d 666 , 688 N.W.2d 747 , 03-2819 . Microsoft Windows NT 6.1.7601 Service Pack 1 The owner-in-possession exception found in sub. (5) does not apply to holders of a prescriptive easement because such holders are not owners. Once the right to a prescriptive easement has accrued by virtue of compliance with s. 893.28 (1) for the requisite 20-year period, the holder of the prescriptive easement must comply with the recording requirements within 30 years under sub. (2) or lose the right to continued use. Schauer v. Baker, 2004 WI App 41 , 270 Wis. 2d 714 , 678 N.W.2d 258 , 02-1674 . Microsoft Windows NT 6.1.7601 Service Pack 1 More specific statutes, govern a municipality's interest in an unrecorded highway and therefore the 30-year recording requirement under this section does not apply to a municipality's interest in an unrecorded highway. City of Prescott v. Holmgren, 2006 WI App 172 , 295 Wis. 2d 627 , 721 N.W.2d 153 , 05-2673 . Microsoft Windows NT 6.1.7601 Service Pack 1 An easement continuously recorded since 1936 for which no efforts were made to establish and use it until the 1990's was not abandoned. Spencer v. Kosir, 2007 WI App 135 , 06-1691 . Microsoft Windows NT 6.1.7601 Service Pack 1 The label of the documents here — “access easement agreement" — and the fact that each was signed by both parties did not transform the grants of easement into contracts subject to contract law. The plaintiffs alleged that a driveway could not be built on the easements described in the agreements because of a wetland delineation and sought a modification of the easements. This claim for relief was an action to enforce the recorded easements, albeit a modified version, and was therefore governed by s. 893.33 (6), not the contract statute, s. 893.43. Microsoft Windows NT 6.1.7601 Service Pack 1 An owner-in-possession exception to the statute of limitations applies to owners by adverse possession. The party who initially adversely possessed land for the necessary period of time is not required to continue to “adversely" possess the disputed property to benefit from the exception. At the end of the applicable adverse possession period, title vests in the adverse possessor and the record owner's title is extinguished. Engel v. Parker, 2012 WI App 18 , 339 Wis. 2d 208 , 810 N.W.2d 861 , 11-0025 . Microsoft Windows NT 6.1.7601 Service Pack 1 This section provides no exception to the limitations period under sub. (6) for enforcement of an easement against a purchaser who had actual notice of the easement. TJ Auto LLC v. Mr. Twist Holdings LLC, 2014 WI App 81 , 355 Wis. 2d 517 , 851 N.W.2d 831 , 13-2119 . Microsoft Windows NT 6.1.7601 Service Pack 1 A survey map filed in the office of register of deeds was not a “recording" that renews the limitations period under sub. (6). To record an instrument, s. 59.43 (1) (e) and (f) require the register of deeds to endorse upon it a certificate of the date and time when it was received as well as a number consecutive to the number assigned to the immediately previously recorded or filed instrument. Without those marks of recording by the register of deeds, there is no basis from which a court can presume that the survey map was recorded. TJ Auto LLC v. Mr. Twist Holdings LLC, 2014 WI App 81 , 355 Wis. 2d 517 , 851 N.W.2d 831 , 13-2119 . Microsoft Windows NT 6.1.7601 Service Pack 1