August 1st, 2025 |

• General
• Real Estate

By Mike Jerominski

Reading Time: 4 minutes

We have all heard the expression “good fences make good neighbors.” Most know it from Robert Frost’s poem “Mending Wall,” but throughout many cultures and times in history, some version of this expression has been used. It conveys the idea that it is important to have clear property boundaries in order to reduce the potential of conflict between neighbors.

In practice, however, clear property boundaries are not always the case. Neighbors may be unsure about where to stop mowing the lawn, where to graze their livestock, or where they can erect a fence or wall, to name a few examples. This is where the concept of adverse possession comes in.

Adverse possession is a legal doctrine by which a person who occupies another person’s property for a specified period of time may gain title to that property. In most instances, that period of time is 20 years.

In order to make a claim for adverse possession, one must show that the five following conditions exist:

1. Actual Possession

   An adverse possessor must take actual, physical possession of land. Courts will consider the nature of the activity on the land to determine whether activity constitutes actual possession. Property is actually possessed if either of the following applies: (1) the property has been protected with a substantial enclosure, such as a fence or wall, or (2) the property has been usually cultivated or improved.

2. Hostile Use

   Second, the use of property must be “hostile” to the rights of the property owner against whom adverse possession is claimed. Put another way, the acts of the party attempting to adversely possess the property must be inconsistent with the rights of the property’s owner. The adverse possessor need not have had any animus against the original owner. However, the adverse possessor must have had a subjective intent to adversely possess the property.

   Permissive uses of land, such as uses under a lease or uses otherwise authorized by the original owner, are not a valid basis for adverse possession. As long as the original owner of the property has allowed the party attempting adverse possession on the property, there will be no adverse possession.

3. Open and Notorious Use

   Third, the use of property must also be “open and notorious.” In other words, the use must leave visible evidence on the property and must be sufficient to give the owner notice that the owner’s rights have been invaded. Any uses which are hidden or concealed, such as occasional tree cutting, are not a valid basis for adverse possession.

4. Continuous Use

   Fourth, the possession must be continuous. The property need not be in use every moment of every day, but if there is a break in possession, the claim of adverse possession is defeated. Once the claim of adverse possession is defeated, the statutory time period begins again.

   Courts will interpret intermittent uses as continuous if the use of the property is essentially intermittent. For example, land which is possessed for grazing purposes each growing season may be held to be continuous, even though the land is not used during the winter.

   Possession by successive adverse claimants can be combined to meet the required period of possession, but only if there is evidence that the earlier possessor intended to transfer possessory interest to the successor. This combining of previous owners’ uses of the land is known as “tacking.” In practice, it means if you have bought a property from someone who was using the property in such a way as to make a viable adverse possession claim, you can add the time they owned the property to the time you have owned the property in order to meet the requirement of 20 years of use of the property.

5. Exclusive Use

   Finally, the use of property must be “exclusive.” This means the landowner attempting the adverse possession must show an intent to exclude others, including the owner, from using the property. For example, if someone attempting to adversely possess part of another’s property fenced in part of that property but still allowed all comers to hunt and fish on the fenced-in land, that would not be evidence of trying to “exclude others.” The attempt to adversely possess the land would almost certainly fail.

What can be done to make sure property you own is not subject to adverse possession? While the doctrine of adverse possession is very old, in 2014 the Wisconsin legislature passed a law to make stopping adverse possession of one’s land fairly simple.

In order to stop adverse possession, you can file with the Register of Deeds what is called an “affidavit of interruption.” This affidavit must contain (1) a legal description of the parcel of land that contains the real estate that is being adversely possessed or adversely used, (2) a statement that the person executing the affidavit is the record title holder of the parcel, (3) a general description of the adverse possession or adverse use that the record title holder intends to interrupt by recording the affidavit, (4) a statement that the adverse possession or adverse use of real estate is interrupted and that a new period of adverse possession or adverse use may begin the day after the affidavit is recorded, and (5) a statement that the record title holder will provide notice as required. The affidavit of interruption must also include a survey of the parcel of land which is no more than five years old. Notice of the affidavit of interruption must also be provided to the parties.

If you believe you have acquired title to land through adverse possession or wish to stop someone from doing so to you, The McLario Firm is here to help. Our experienced attorneys can guide you through the adverse possession process, ensuring that your rights are fully protected. Contact us today to learn more.