Easements Don’t Last Forever

You and your neighbor both access the street through a driveway which is located on the neighbor’s property.

To confirm your right to use the driveway, your neighbor has provided you with an easement approved by your FOS attorney.

Now that the easement is recorded, you’re done, right?

Not necessarily.

Under an often overlooked Wisconsin statute, an easement must be reaffirmed every 40 years or its enforcement rights will be lost.

Section 893.33(6) does two things. It states that actions to enforce easements can be brought for 40 years after the easement’s recording.

It also provides that a re-recording of the easement within the 40-year period will allow an action to be filed for 40 years from the re-recording.

This means that if no action is taken in those four decades, your rights in an easement—your driveway access—will be lost.

This is true, according to the Wisconsin Court of Appeals, even if you purchased the property during the easement’s lifespan, did not know about the statute, and/or used the easement after its statutory expiration without objection.

But if you re-record the easement 39 years after its first recording, your practical enforcement period will be extended 40 years after that re-recording.

So, those with easement rights should be sure to re-record any easements affecting their property within 40 years (even earlier is better) after the most recent recording or re-recording of that easement.

40 years is a long time. Why bother?

Because you may buy a piece of property to which an easement was recorded 35 years prior. Then, you would only have five years to act before losing easement rights.

Or, you may own a piece of land which you intend to remain in your family for generations. You can only protect your family’s easement rights by re-recording any easements as required.

If you benefit from (or are subject to) an easement and have questions regarding its viability, contact your FOS attorney.