A recent decision by the Wisconsin Court of Appeals in TJ Auto, LLC v. Mr. Twist Holdings, LLC, 2014 WI App 81, has called into question the assumption held by many property owners that their written easement will continue to be legally enforceable for the foreseeable future and will not need to be recorded. The Court of Appeals has concluded otherwise. That is, the Court of Appeals has interpreted the statute of limitations set forth in Section 893.33(6) of the Wisconsin Statutes to require property owners to re-record their easement rights within 40 years of the original grant of easement, or risk the legal conclusion that the easement is no longer legally enforceable. This applies even if the party that owns the property that is burdened by the easement has full knowledge of the existence of the easement itself.
Therefore, for any property owners who wish to preserve the benefit of a written easement that was recorded before July 1, 1980, the property owner has a period of 60 years in which to re-record the easement. For easements recorded after July 1, 1980, the statute of limitations period within which you must re-record the easement is 40 years.
This is a significant decision by the Wisconsin Court of Appeals that has gone largely unnoticed thus far. My recent discussion with the Register of Deeds in a county in which I practice disclosed that they were not aware of this development. Anyone seeking further advice to protect their rights in an easement that benefits their property should contact their attorney to preserve their rights.