"PERPETUAL" EASEMENTS DO EXPIRE

QUESTION: When does "Perpetual" or "Indefinite" mean only 40 years?

ANSWER: When Wisconsin Statute of Limitations says so.

That's right! An easement that gives a "perpetual," "indefinite," or "lifetime" easement is not perpetual, indefinite or lifetime in Wisconsin. Schmidt & Schmidt, SC has been in business for over 100 years and the number of easements this firm has created is staggering.

However, Wisconsin law does not automatically terminate easements, but the law does NOT allow Wisconsin courts to enforce an easement if it is over 40-years old!

callout

§893.33(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.

The Court of Appeals has interpreted the statute of limitations set forth in §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 very real conclusion that the easement is no longer legally enforceable. Very few Wisconsin property owners know of this law. This law even applies to easements with "perpetual" terms.

Under Wisconsin Statutes §893.33(6), written easements recorded on or after July 1, 1980 expire 40 years after their recording date, unless they are "re-recorded." Also, pursuant to §893.33(8), easements recorded prior to July 1, 1980 expire upon the earlier of 60 years after their recording date or 40 years after July 1, 1980, unless they are "re-recorded."

By re-recording an easement prior to its expiration date, its enforceable life is extended for another 40-year period, ensuring that the dominant tenant (dominant estate or Grantee) retains the right to use the easement for its stated purpose. Because the rights secured by an easement are often critically important to the Grantee’s use of its property (e.g. the easement may provide the sole means of access to By re-recording an easement prior to its expiration date, its enforceable life is extended for another 40-year period, ensuring that the dominant tenant (dominant estate or Grantee) retains the right to use the easement for its stated purpose. Because the rights secured by an easement are often critically important to the Grantee’s use of its property (e.g. the easement may provide the sole means of access to the Grantee’s property), it is imperative that Grantees re-record their easements or risk losing their easement rights. Likewise, Grantors should be aware of the expiration dates of any easement burdening their property and the steps to take if and when the "expiration date" passes.

So if you are the owner of a property that is "benefitted" or "burdened" by a decades-old easement, we urgently recommend reviewing your easements and chain of title now to determine whether any easement rights have expired or are about to expire

HOW TO FIX? Contact Attorney Andrew Schmidt for answers to your questions. Where appropriate we can record a special document to renew your easement rights for another 40 years.

box imagImportantly, not every mention of an easement in the public record constitutes a "re-recording" for purposes of Wisconsin Statutes §893.33(6), and there are legal requirements that must be met in order to effectively re-record an easement.

The Schmidt & Schmidt Real Estate program is well versed in these legal requirements, and is available to review easements and other documents affecting your property and to provide advice on the re-recording, if appropriate.

See the Schmidt & Schmidt EASEMENT RENEWAL INTAKE FORM at the end of this article so that you can prepare yourself for your visit with Attorney Andrew Schmidt.