January 2, 2019Client Alert

Calling All Property Owners – Make Yourself a New Year’s Resolution to Review and Re-Record Your Easements Before It Is Too Late

Property owners (both residential and commercial) are likely approaching the New Year with a list of goals to achieve relative to their property. That list should include an evaluation of whether easements benefitting or burdening the property are in danger of expiring.

Under Wisconsin law, an “easement” is defined as a nonpossessory interest in land that gives the easement holder the right to use land owned by another party for a specific use. Most easements are created through a written instrument, executed by the owner of the property burdened by the easement (Grantor) and the party benefiting from the easement (Grantee). Once executed, the easement is recorded with the recorder or register of deeds of the county in which the property is located, thereby notifying the public of the Grantee’s rights. Common examples of purposes for easements include: permitting the Grantee to construct and use a driveway over the Grantor’s property; permitting installation of utilities on the Grantor’s property; or preserving the Grantee’s right to engage in a stated activity on the Grantor’s property (e.g. the right to hunt). Though some easements have a stated time after which they expire, or are meant to benefit only a specific person or entity, many easements “run with the land” and are intended to benefit the Grantee’s property in perpetuity.

Unbeknownst to many Wisconsin property owners, however, even easements with “perpetual” terms have “expiration dates.” Under Wis. Stat. § 893.33(6), written easements recorded on or after July 1, 1980 expire 40 years after their recording date, unless they are “re-recorded.”  Pursuant to Wis. Stat. § 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 lifespan is extended for another 40-year period, ensuring that the 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.

Although easements recorded after July 1, 1980 will not begin to expire under Wis. Stat. § 893.33(6) until June 30, 2020, easements recorded prior to July 1, 1980 may be expiring as we speak. Thus, if you are the owner of a property that is benefitted or burdened by a decades-old easement, we recommend reviewing your easements and chain of title now to determine whether any easement rights have expired or are about to expire. Importantly, not every mention of an easement in the public record constitutes a “re-recording” for purposes of Wis. Stat. § 893.33(6), and there are legal requirements that must be met in order to effectively re-record an easement. Michael Best’s Real Estate team 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.

The Michael Best Real Estate team wishes success to you in your 2019 endeavors, and a great start to the New Year.

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