There is a common myth in the state of Wisconsin that express, written easements do not expire. Many believe that easements which run with the land last forever but a Wisconsin statute proves otherwise.
Landowners, whose properties are burdened with easements recorded prior to July 1, 1980 may be excited to learn that those easements (unless they have been re-recorded) are expired.
Limitations of Easements: Wis. Stat. § 893.33(6)
Wis. Stat. § 893.33(6) limits the enforceability of easements for a period of 40 years after the document referencing the easement has been recorded.
To put it plain and simple: if your easement was recorded prior to today’s date in 1980, and has not been re-recorded, it is now expired.
40 Year vs 60 Year Easement Limitations
The version of Wis. Stat. § 893.33(6) in place prior to July 1980 allowed easements to be enforced for a period of 60 years after the document referencing the easement had been recorded.
Pursuant to Wis. Stat. § 893.33(8), the older easements were grandfathered in and the 60-year statute of limitations still applied to them. However, there was an important limit to the expanded statute of limitations that became very important last month. Specifically, the statute of limitations in which easement rights found in a document recorded prior to July 1, 1980 could be enforced was either 60 years from the recording “or 40 years after July 1, 1980, whichever first terminates.” In other words, easement rights based solely on a document recorded prior to July 1, 1980 cannot be enforced.
This does not mean, however, that easements created prior to July 1, 1980 are automatically invalid as the 40-year period is renewed each time a recorded document references the easement. For example, if an easement, originally recorded in 1933, was referred to in warranty deed recorded in 1972, and identified in a certified survey map in 2010, this easement would still be valid until 2050 (this date would also be extended by any subsequent recorded document that references the 1933 easement).
What does this mean for you? Is your easement expired?
If your property is burdened with an easement based solely on a document recorded prior to July 1, 1980, it is no longer enforceable, and a termination of easement should be recorded with the applicable Register of Deeds.
If you have questions as to when an easement was last referenced in a recorded document, we can assist you by reviewing the deeds and other recorded documents related to the subject parcels.
If your parcel benefits from the use of an easement, we can likewise assist you in determining when it would expire and assist you in extending the deadline.