A squatter is a person who enters property belonging to someone else and lives there without the owner's permission. The legal doctrine that gives a squatter legal rights is called adverse possession. Each state has different rules about how long a person must adversely possess real property before they gain legal rights to that property. Under Wisconsin law, the time frame for adverse possession depends on whether the squatter had some "color of title" and whether they paid property taxes.
History of Adverse Possession Laws
Adverse possession is an ancient legal doctrine that dates back centuries to provisions of European law. The doctrine was developed historically as peasants in England moved onto property owned by a ruler or lord who did not step up and assert title. As time passed, they claimed ownership of the land.
The English Parliament eventually put the right to adverse possession into the statutes. This led to other European governments doing the same. For example, France added the right to adverse possession to the Napoleonic Code in 1804. Each country specifies in its laws how much time the possession must be in order for legal rights to attach.
In modern day, England still recognizes the right to adverse possession and many of the states in the United States include it in their real property laws. Wisconsin is not an exception. A person who is not the owner of property can gain legal ownership of it in Wisconsin if they fulfill the required conditions.
Types of Adverse Possession
The term "squatter" suggests itinerant people without property or homes of their own, and such individuals can qualify for adverse possession in Wisconsin. They find an empty or abandoned property and move in, occupying it as if they owned it.
Just as often, however, a person claiming adverse possession in Wisconsin has a home of their own, and it happens to be on the neighboring property. The neighbor plants trees or installs a deck over land that actually belongs to the next-door homeowner who doesn't notice or doesn't object. Whether the neighbor believes the property to be their own or actually knows that it belongs to another, they will obtain legal rights to the property if they continue to occupy it for the appropriate length of time in Wisconsin.
Wisconsin Adverse Possession
Wisconsin, like most states, sets up certain requirements that a person occupying property must meet before they qualify to claim ownership of property by adverse possession. In this state, the possession must be hostile, actual, exclusive, open/notorious, and continuous.
Each of these terms has a particular meaning for adverse possession purposes. Though "hostile" sounds like the person must act aggressively, this is not the case. Hostile possession simply means claiming ownership, since the squatter's possession is "hostile" to the true owner's possession. If the person is given permission to use the property or pays the owner to use the property, the possession is not hostile. "Actual possession" means that the trespasser must actually be exercising control over the property by living there, fencing it, or making improvements.
Exclusive and Open Possession by the Squatter
"Exclusive" means that the individual claiming adverse possession must not be sharing possession with anyone. This includes the owner and other squatters. Open and notorious means that the trespasser cannot be hiding out on the property but must be using the property openly like a legal owner would. That ensures that, if the legal owner checks on the property, they will notice the adverse use.
Meaning of Continuous Possession
"Continuous" means the trespasser cannot occupy the property in fits and starts, leaving during the winter, for example, and reclaiming it in springtime. While the person can leave the property to do ordinary chores and business, like going to get groceries, they cannot move out or stop using the property for any period of time, or the time period starts again.
Adverse Possession Time Frame
In Wisconsin, adverse possession doesn't happen overnight. Assuming that the trespasser's occupation of the property is hostile, actual, exclusive, open, and continuous, they have to occupy the premises for 20 years in order to claim legal title though squatters' rights.
A few circumstances can shorten that period. First, if the person possesses the property under "color of title," the statutory period for adverse possession is reduced to 10 years. For color of title, the person must have some claim to ownership based on title either through a deed or through public records that suggest that the trespasser owns the property. The occupant honestly believes they own the property, but the deed is defective and so they actually do not.
If the trespasser, in addition, shows that they paid all real estate taxes levied against the property, the period in Wisconsin for adverse possession is further reduced. A trespasser who both holds under color of title and pays all property taxes gets legal ownership of the property in seven years.
Extending Permission to the User
When a property owner discovers that a squatter or trespasser is occupying some part, or all, of a parcel of land they own, they can take action. In Wisconsin, a fairly common (and inexpensive) way to defend against an adverse possession claim if it involves a small amount of land, like a misplaced fence, is to make the use permissive. The landowner can do this by giving the neighbor who is using a foot or so of their land permission to do so.
This permission should be in writing and recorded. This written permission can be renewed by the landowner, and they can even revoke it if they wish to at a later date.
Affidavit of Interruption
In Wisconsin, the landowner can also interrupt a claim of adverse possession by filing an affidavit of interruption under Wisconsin Statutes Section 893.305. This is an affidavit prepared by the record title holder and recorded in the office of the register of deeds for the county in which the parcel at issue is located. With it, the property owner must file a survey of the record title holder's parcel that was certified five years or less before the date of recording.
The affidavit of interruption must include:
- Legal description of the parcel of land that contains the adversely possessed real estate.
- Statement that the person executing the affidavit is the record title holder of the parcel.
- General description of the adverse possession or adverse use that the record title holder intends to interrupt.
- Statement that the adverse possession or adverse use of real estate is interrupted and that a new period of adverse possession or adverse use may begin the day after the affidavit is recorded.
The record title holder must give notice to the person adversely possessing the property before filing the affidavit. If the property owner knows the name and address of the trespasser, they must send, by certified mail with return receipt requested, a copy of the recorded affidavit of interruption, and a notice that the record title holder intends to record the affidavit within 90 days of the date the notice is received. If the owner does not know the person who is adversely possessing the property, they can publish notice in the official newspaper of the county in which the record title holder recorded the affidavit of interruption.
Quiet Title Action
The statute setting out the procedure for an affidavit of interruption specifies that this is not the only way to attack adverse possession. Another way, in Wisconsin, is to file a quiet title or declaration of interest in real property. Using this action, a landowner can clarify existing property interests. Since the record owner does not bear the burden of proof, they have an edge in the lawsuit, but any litigation can become expensive and take a long time.
The burden of proof is a legal concept meaning a party has to prove their claims in a dispute. Under Wisconsin, the owner listed on the title is presumed to hold full legal title to the property. That means that the other party, the squatter or trespasser, must prove to the court that they met all of the state criteria for adverse possession.
The Wisconsin court must be convinced by a preponderance of the evidence that the occupancy was actual, hostile, exclusive, open and continuous and that it lasted for the requisite period of time. If the court is not certain whether adverse possession has been proved, it must rule in favor of the owner on the title. If the Wisconsin court finds that the squatter met their burden of proof, title to the property is transferred to the person by way of an adverse possession deed. At that point, they have all the rights and responsibilities of a legal owner and can occupy, rent or sell the property as they like.
Wisconsin Eviction Action
Since Wisconsin does not have any specific laws for getting squatters to leave a property, landowners try a variety of means to get rid of them quickly and without great expense. One relatively inexpensive way to do this is to go through a judicial eviction process.
The best thing to do is work with an attorney to begin the process as quickly as possible. The Wisconsin squatter must be served with an eviction notice before the landowner files an unlawful detainer case. There are two possible options: file a 5-day notice to pay rent or vacate or a 14-day notice to vacate with no option to pay rent and remain. Since there is no rental agreement, the landlord might set the reasonable rental value as the rent that is due.
After giving notice, if the squatter does not pay the demanded rent or does not move out, it is time to move to the court. The landowner can file an eviction action with the appropriate county court. The court will schedule a hearing at which both parties will be summoned to attend and have the right to present their case. Note that filing the action does not interrupt the time passing for the purposes of adverse possession, so the sooner the eviction action is resolved, the better.
Forcing the Trespasser to Leave
Property owners should never use self-help to rid their property of squatters. They must go through the courts. Even after a successful eviction case, no actions designed to force the squatter out, like cutting off utilities or changing the locks, are permitted. Such actions could make the landowner liable to the squatter for damages.
Rather, after an eviction case, the Wisconsin court gives a warrant to a sheriff or constable. These law enforcement officers are able to schedule a time and date to physically remove the squatter from the property following an eviction order.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.