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  1. #1
    KJPenny is offline Junior Member
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    Oct 2006
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    Prescriptive Easement (Shared Driveway) - Wisconsin

    What is the name of your state? WI

    My wife and I have lived in our house for 9 years and have been using the same access to our garage since then. The original garage was in the same place, and when it was torn down, our new one is in the same spot.

    We have a "shared" driveway, that is only listed as such on the Real Estate listing when we bought it, but not on the deed or on legal description.

    The new neighbors have been there for 6 years. Dexter, who is our neighbor has been saying that he could close down that driveway at any time and that we'd have to enter through the other side of our driveway, since there is access. However, this would not allow entrance for cars into our garage. Dexter says that we'd have to cut a new hole in the garage to gain access.

    I have spoken with a lawyer about this and we're going to sue for a prescriptive easement. Dexter said we can use the driveway, but if we ever sell, he's going to force the new owners to find different access. The house we live in is over 100 years old and the garage (and previous) have been in the same spot for over 50 years. Our key witness grew up in the house, and is a Federal Judge in Milwaukee. He grew up in the house as his parents built the house and is going to testify that our garage is in the same place as the old one, and that access to such has been in existence for over 50 years.

    I've tried telling Dexter that he's not going to win, but he insists that prescriptive easement will not apply since he's not denying access to the property since we can still come in from the other side. We're friends, or at least I thought we were, with Dexter and his wife, and I think this is going to end that. But, in the same sense, we want a legal document that will stay with our home, our children, and any new owners.

    Does anyone know of instances, or cases, that would shed light on this...at least according to Wisconsin Law? I want to have as much information to provide my lawyer with, so the research won't cost me too much. Plus, I want to read on it as well for personal info.
  2. #2
    efflandt is offline Senior Member
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    Feb 2005
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    Elgin, IL USA
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    I am not a legal expert, but did have an easement problem in WI (Price County). Basically the easement represented by the seller (in aerial photo) was never recorded, and specifically excluded from title insurance (instead guaranteed by a company that consisted of the seller). The recorded easement actually traversed a bog and creek (impassible by normal vehicles). I wish I had an attorney to go over everything at that time.

    We had use of the easement, so the problem did not become apparent until 12 yrs later while attempting to get title insurance to sell the property. The property being used as the easement changed hands. At first the new owners said they would allow us to use it, but would not put anything in writing. Then they suddenly decided and notified us in January of that year that they were going to lock to gate in September.

    From what my attorney told me, you cannot get a prescriptive easement unless your property is landlocked. If there is any other access (adjoining public right of way or other easement), however difficult it is, it is not landlocked. In some cases petitioning the township for a roadway is an (expensive) option. When I contacted the seller, he said he based the easement on verbal permission from the (no longer) owner, and a 1910 survey for a highway (county has no record of any highway there).

    From what I read web searching for "Wisconsin prescriptive easement", in order for it to be valid, adverse use has to continue for 20 yrs, and an instrument has to be recorded within 30 years of when that adverse use started. Then the clock starts over requiring another 20 yrs adverse use before another claim can be make.

    The fact that you currently have permission to use such easement means that the 20 yr adverse use clock would not begin until permission was withdrawn (if not arrested for trespass). But if you are NOT landlocked, prescriptive easement may not even apply.

    It would have been nice if you had known about this before you rebuilt the garage, so you could have made provisions for revising garage access. Good luck.
  3. #3
    KJPenny is offline Junior Member
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    Easement

    I am not landlocked, but the previous garage had been there for 50 years and my lawyer said that since it had access for that time period, it cannot be just shut off. I even have pictures of the old garage on the same spot.

    My surveyor also has case record where a woman had used a driveway for 20 years, when she had her own driveway in another location. The new owner of the house next door tried to get her to stop using their shared driveway and use her original. Well, the courts said she could use the shared due to being used for 20 years.

    I did some searching and found the following article.

    HOW THE THREE TYPES OF EASEMENTS CAN AFFECT YOUR PROPERTY

    Robert Bruss
    Copyright 2004 Inman News

    A few weeks ago, I received an e-mail from a son concerned about his 80-year-old mother's home, which apparently has its driveway a few feet on a neighbor's vacant lot. He reports his mother has owned her home about 40 years and the driveway was installed by the builder.

    A new owner has purchased the adjoining vacant lot and wants the driveway moved. Can the 80-year-old homeowner be forced to move the driveway she (and her late husband) used for more than 40 years? You will soon know the answer.

    ALMOST EVERY PROPERTY IS SUBJECT TO EASEMENTS. Even if your property is out in the rural "boondocks," it probably has one or more easements affecting it. The definition of an easement is the legal right of another to use part of your property.

    Examples include utility easements, above or below ground, for power lines, phone lines, water pipes, sewer pipes, gas lines, and TV cable lines. Without these free easements, most utilities would not agree to serve individual parcels.

    More easement examples include the legal or implied right of individuals to pass over a neighbor's property, such as for a driveway. Most of these easements were created when the subdivision was developed, or the lots were subdivided.

    Although very rare, an easement by necessity can be created to reach a landlocked parcel that has no access to a public road. Creating such an easement usually requires legal action against an adjoining neighbor. But it creates tremendous increased property value for the owner of the landlocked parcel.

    Here is a closer look at these three principal types of easements:

    1-WATCH OUT FOR A PRESCRIPTIVE EASEMENT. If you use part of your neighbor's property without permission, or someone uses part of your property even after you tell them to stop, a prescriptive easement for permanent use might arise.

    That is the situation described in the first paragraph where the homeowner used her driveway over the adjoining property more than 40 years without permission.

    The legal tests to acquire a prescriptive easement over the property of another owner are (a) open (obvious, not secretive), (b) notorious (clearly visible), (c) hostile (without the landowner's consent), and (d) continuous (without interruption) for the number of years required by state law.

    Payment of property taxes is not required, as it is to acquire title to the entire property by adverse possession. The minimum prescriptive easement hostile use time is just five years in California. But it is 30 years in Texas. Other states having varying time tests.

    However, a prescriptive easement need not be exclusive. It can involve shared use, either with the property owner or with another prescriptive easement user.

    Clearly, the homeowner in the example above meets the tests. If the new owner of the adjoining vacant lot attempts to terminate her driveway use, perhaps by erecting a fence, the legal action to perfect a prescriptive easement is called a "quiet title lawsuit." A local real estate attorney should be consulted.

    Just hoping someone else had to deal with the same situation and had case law. I'll keep looking.

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