893.16(3)(3) A disability does not exist, for the purposes of this section, unless it existed when the cause of action accrues. 893.16(4)(4) When 2 or more disabilities coexist at the time the cause of action accrues, the 2-year period specified in sub. (1) does not begin until they all are removed. 893.16(5)(5) This section applies only to statutes in this chapter limiting the time for commencement of an action or assertion of a defense or counterclaim except it does not apply to: 893.16(5)(a)(a) Actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for escape; 893.16(5)(c)(c) A cause of action which accrues prior to July 1, 1980. 893.16 HistoryHistory: 1979 c. 323; 1997 a. 133. 893.16 NoteJudicial Council Committee’s Note, 1979: This section is based on present ss. 893.135, 893.33, 893.37 and 893.38. Previous ss. 893.135 and 893.33 stated that the time of disability is not counted as the running of a statute of limitation and further stated that an action could be brought within a specified time after the disability ceased. This is inherently inconsistent and is replaced in s. 893.16 by the simple provision that the action may be commenced within 2 years after the disability ceases. Changes from previous s. 893.135 are:
893.16 Note(a) The period within which to sue after the period of disability ends is reduced from 5 years to 2 years.
893.16 Note(b) The maximum extension time available to those under disability of insanity or imprisonment is limited to 5 years. This means that such individuals must sue within 5 years after the basic applicable statute of limitations would have run against one not under disability, or within 2 years after the disability ends, whichever period is shorter.
893.16 Note(c) The phrase in previous s. 893.135, “at the time such title shall first descend or accrue” is changed to “at the time the cause of action accrues,” and this is reinforced by subsection (3). Despite appearances, this represents no change in substance because of the decision in Swearingen v. Roberts, 39 Wis. 462 (1876).
893.16 NoteOther changes include:
893.16 Note(a) A specific provision provides that no limitation period is shortened by the application of this section. This represents no substantive change.
893.16 Note(b) In view of the 5-year extension provision reasons for excluding those imprisoned for life from the benefits of the disability provision disappear and the exclusion has been dropped.
893.16 Note(c) The period within which to sue provided in previous s. 893.33 has been increased from one year to 2 years.
893.16 NoteTo illustrate some of the effects of these revisions:
893.16 Note(a) If a statute of limitation has run on a cause of action of a minor for a personal injury the minor would have one year to commence an action after attaining age 18 under previous s. 893.33. Under s. 893.16 the minor has 2 years to commence an action after attaining age 18.
893.16 Note(b) If a minor has a cause of action affecting title to real estate and the statute of limitation has run the minor has 5 years to commence an action after attaining age 18 under previous s. 893.135. Under s. 893.16 the minor has 2 years to commence the action. [Bill 326-A]
893.16 AnnotationSub. (1) is effective to toll the running of a statute of limitations even when, under s. 893.07, the plaintiff would be barred from bringing suit under applicable foreign law. Scott v. First State Insurance Co., 155 Wis. 2d 608, 456 N.W.2d 152 (1990). 893.16 AnnotationIf a party wishes the benefit of the disability tolling statute, then the party does not get the benefit of the discovery rule. Kilaab v. Prudential Insurance Co. of America, 198 Wis. 2d 699, 543 N.W.2d 538 (Ct. App. 1995). 893.16 AnnotationInjury from intentional acts of sexual assault against minors and the cause of any injury should have been discovered, as a matter of law, at the time of the assaults. A claim of repressed memory does not indefinitely toll the statute of limitations regardless of the victim’s minority or the position of trust occupied by the alleged perpetrator. Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997), 94-0423. 893.16 AnnotationParents’ claims for injury resulting from the sexual assault of their child accrue when the child’s claims accrue, regardless of when the parents learn of their claim. Joseph W. v. Catholic Diocese of Madison, 212 Wis. 2d 925, 569 N.W.2d 795 (Ct. App. 1997), 96-2220. 893.16 AnnotationUnder sub. (1), “mental illness” is a mental condition that renders a person functionally unable to understand or appreciate the situation giving rise to the legal claim so that the person can assert legal rights or functionally unable to understand legal rights and appreciate the need to assert them. Legal consultation and filings are probative of a plaintiff’s mental health and functional ability to appreciate and act upon the plaintiff’s legal rights. Storm v. Legion Insurance Co., 2003 WI 120, 265 Wis. 2d 169, 665 N.W.2d 353, 01-1139. 893.16 AnnotationThis section does not apply to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider. The legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. Haferman v. St. Clare Healthcare Foundation, Inc., 2005 WI 171, 286 Wis. 2d 621, 707 N.W.2d 853, 03-1307. 893.16 AnnotationStorm, 2003 WI 120, does not stand for the proposition that sub. (1) tolls the three-year period of limitation under s. 893.555 (2) (a) when a claimant survives one month after an injury. Rather, the Storm court’s use of the term “toll” reflects the practical effect of sub. (1) under circumstances in which a claimant’s disability never ceases. In that event, a period of limitation is never triggered by the cessation of the claimant’s disability, and the underlying period of limitation can be effectively “tolled” for up to five years. In contrast, in this case in which the decedent’s disability ceased upon death one month after the injury, the two-year period of limitation in sub. (1) was not triggered, and, pursuant to sub. (2), the otherwise applicable three-year period of limitation in s. 893.555 (2) (a) applied and was not tolled. Estate of Cohen v. Trinity Health Management, LLC, 2022 WI App 26, 402 Wis. 2d 220, 975 N.W.2d 293, 21-1195. 893.17893.17 Transition; limitation if disability exists; temporary. 893.17(1)(1) This section does not apply to a cause of action which accrues on or after July 1, 1980. 893.17(2)(2) Except as provided in sub. (2m), if a person entitled to commence any action for the recovery of real property or to make an entry or defense founded on the title to real property or to rents or services out of the real property is, at the time the title shall first descend or accrue, under any of the following disabilities, the time during which the disability continues is not a part of the time limited by this chapter for the commencement of the action or the making of the entry or defense: 893.17(2)(c)(c) The person is imprisoned on a criminal charge or in execution upon conviction of a criminal offense, for a term less than for life. 893.17(2m)(2m) An action under sub. (2) may be commenced or entry or defense made, after the time limited and within 5 years after the disability ceases or the person entitled dies, if the person dies while under the disability, but the action shall not be commenced or entry or defense made after that period. 893.17 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.135 of the statutes renumbered for more logical placement into restructured ch. 893 and amended to make its disability provisions applicable only to a cause of action for recovery of real property or to make an entry or defense founded on the title to real property or to its rents or services which accrues prior to July 1, 1980. The general disability provisions in s. 893.16 applicable to all statutes of limitation in ch. 893 apply to all causes of action which accrue on or after July 1, 1980. [Bill 326-A]
893.18893.18 Transition; persons under disability. 893.18(2)(2) Except as provided in sub. (2m), and except in actions for the recovery of a penalty or forfeiture, actions against a sheriff or other officer for an escape, or actions for the recovery or possession of real property, if a person entitled to bring an action mentioned in this chapter was at the time the cause of action accrued under any of the following disabilities, the time of the disability is not a part of the time limited for the commencement of the action: 893.18(2)(a)(a) The person is under the age of 18 years, except for actions against health care providers. 893.18(2)(c)(c) The person is imprisoned on a criminal charge or in execution under sentence of a criminal court for a term less than life. 893.18(2m)(2m) The period within which an action must be brought cannot be extended under sub. (2) more than 5 years by any disability, except infancy, nor can that period be so extended, in any case, longer than one year after the disability ceases. 893.18(3)(3) A disability does not exist, for the purpose of this section, unless it existed when the cause of action accrued. 893.18(4)(4) When 2 or more disabilities coexist at the time the cause of action accrues the period of limitation does not attach until they all are removed. 893.18 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.33 of the statutes renumbered for more logical placement in restructured ch. 893 and amended to make its disability provisions applicable only to a cause of action which accrues prior to July 1, 1980. The general disability provisions in s. 893.16 applicable to all statutes of limitation in ch. 893 apply to all causes of action which occur on or after July 1, 1980. [Bill 326-A]
893.18 AnnotationBecause the parents’ claim arising from injury to their minor child was filed along with the child’s claim within the time period for the child’s claim, the parents’ claim was not barred by s. 893.54. Korth v. American Family Insurance Co., 115 Wis. 2d 326, 340 N.W.2d 494 (1983). 893.18 AnnotationAn estate’s survival claim under s. 895.01 is not tolled by sub. (2) if the only beneficiaries of the estate are minors. Lord v. Hubbell, Inc., 210 Wis. 2d 150, 563 N.W.2d 913 (Ct. App. 1997), 96-1031. 893.18 AnnotationA parent’s claim for negligent infliction of emotional distress arising from the same act as the child’s injury benefits from the child’s tolling period. Carlson v. Tschopp-Durch-Camastral Co., 755 F. Supp. 847 (1991). 893.19893.19 Limitation when person out of state. 893.19(1)(1) If a person is out of this state when the cause of action accrues against the person an action may be commenced within the terms of this chapter respectively limited after the person returns or removes to this state. But the foregoing provision shall not apply to any case where, at the time the cause of action accrues, neither the party against nor the party in favor of whom the same accrues is a resident of this state; and if, after a cause of action accrues against any person, he or she departs from and resides out of this state the time of absence is not any part of the time limited for the commencement of an action; provided, that no foreign corporation which files with the department of financial institutions, or any other state official or body, pursuant to the requirements of any applicable statute of this state, an instrument appointing a registered agent as provided in ch. 180, a resident or any state official or body of this state, its attorney or agent, on whom, pursuant to such instrument or any applicable statute, service of process may be made in connection with such cause of action, is deemed a person out of this state within the meaning of this section for the period during which such appointment is effective, excluding from such period the time of absence from this state of any registered agent, resident agent or attorney so appointed who departs from and resides outside of this state. 893.19(2)(2) This section shall not apply to any person who, while out of this state, may be subjected to personal jurisdiction in the courts of this state on any of the grounds specified in s. 801.05. 893.19 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.30 renumbered for more logical placement in restructured ch. 893 and revised for purposes of clarity only. [Bill 326-A]
893.19 AnnotationThe validity of the defense that a North Carolina limitation statute barred the action was determined in light of analysis of North Carolina products liability case law. Central Mutual Insurance Co. v. H.O., Inc., 63 Wis. 2d 54, 216 N.W.2d 239 (1974). 893.20893.20 Application to alien enemy. When a person is an alien subject or citizen of a country at war with the United States the time of the continuance of the war is not a part of the time limited for the commencement of the action. 893.20 HistoryHistory: 1979 c. 323. 893.20 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.31 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.21893.21 Effect of military exemption from civil process. The time during which any resident of this state has been exempt from the service of civil process on account of being in the military service of the United States or of this state, shall not be taken as any part of the time limited by law for the commencement of any civil action in favor of or against such person. 893.21 HistoryHistory: 1979 c. 323. 893.21 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.32 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.22893.22 Limitation in case of death. If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced by the person’s representatives after the expiration of that time and within one year from the person’s death. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced after the expiration of that time and within one year after the issuing, within this state, of letters testamentary or other letters authorizing the administration of the decedent’s estate. 893.22 HistoryHistory: 1979 c. 323; 2001 a. 102. 893.22 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.34 renumbered for more logical placement in restructured ch. 893 and revised for the purpose of clarity only. [Bill 326-A]
893.22 AnnotationThis section does not provide a one-year extension of the statute of limitations from when a creditor, or another, petitions for probate of the decedent’s estate under s. 856.07. This section only applies when a person entitled to bring the action dies with an existing claim that has less than one year remaining on the period of limitations. In such cases, the period of limitations is extended for one year, which begins to run upon the person’s death. Kurt Van Engel Commission Co. v. Zingale, 2005 WI App 82, 280 Wis. 2d 777, 696 N.W.2d 280, 04-1900. See also Walberg v. St. Francis Home, Inc., 2005 WI 64, 281 Wis. 2d 99, 697 N.W.2d 36, 03-2164. 893.23893.23 When action stayed. When the commencement of an action is stayed by injunction or statutory prohibition the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action. 893.23 HistoryHistory: 1979 c. 323. 893.23 NoteJudicial Council Committee’s Note, 1979: This section is previous s. 893.36 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.23 AnnotationThe interplay between this section and s. 893.80 creates a statute of limitations equal to three years and 120 days when filing a claim under s. 893.80. Colby v. Columbia County, 202 Wis. 2d 342, 550 N.W.2d 124 (1996), 93-3348. ACTIONS CONCERNING REAL OR
PERSONAL PROPERTY
Subch. III of ch. 893 NoteJudicial Council Committee’s Note, 1979: This subchapter assembles sections affecting real or personal property in a single location in ch. 893. It revises some present provisions; rearranges others; adds a 7-year limitation statute under certain circumstances and a codification of case-law relating to obtaining prescriptive rights by adverse user; and deletes several present sections considered unnecessary.
Subch. III of ch. 893 NoteNotes following the sections of the subchapter explain the rearrangements, changes, and additions. However, specific discussion of those sections eliminated follows:
Subch. III of ch. 893 Note(1) Previous ss. 893.02 and 893.03 were judged duplicative of the principal operative sections and possibly confusing. Nelson v. Jacobs, 99 Wis. 547, 75 N.W. 406 (1898), appears to rely in part on these sections for the proposition that one who has adversely possessed for 20 years has marketable title which can be forced on a vendee who objects, even though not established of record. This is undesirable and contrary to current understanding; see Baldwin v. Anderson, 40 Wis. 2d 33, 161 N.W.2d 553 (1968). In addition, Zellmer v. Martin, 157 Wis. 341, 147 N.W. 371 (1914) suggests that these sections may mean that 20 years of continuous disseisin of a true owner may bar that owner even if the claiming adverse possessor has not possessed in one of the ways required by previous s. 893.09. This may be confusing, since the language of previous s. 893.09 precluded other forms of possession under the 20-year statute. Other than as here noted, ss. 893.02 and 893.03 have been rarely cited and are not significant. In view of the presumption of possession by the true owner provided by previous s. 893.05, which this subchapter retains, previous ss. 893.02 and 893.03 contributed no needed substance to the subchapter. Subch. III of ch. 893 Note(2) Previous s. 893.075 was enacted as a companion to s. 700.30, which was held unconstitutional in Chicago & N.W. Transportation Co. v. Pedersen, 80 Wis. 2d 566, 259 N.W.2d 316 (1977). No new s. 700.30 has been enacted. Therefore, s. 893.075 is surplusage and repealed. Subch. III of ch. 893 Note(3) The ancient doctrine of “descent cast” is no longer of practical importance, especially since the passage of the new probate code in 1971. Therefore, the need for a response to that doctrine in previous s. 893.13 has disappeared, and the section has been repealed.
Subch. III of ch. 893 Note(4) Previous s. 893.18 (7) limited the time within which title to real estate could be attacked based on a defect in the jurisdiction of a court of record which entered a judgment affecting the title. That section is repealed as its application is preempted by s. 706.09 (1) (g). [Bill 326-A]
893.24893.24 Adverse possession; section lines. 893.24(1)(1) A written instrument or judgment that declares the boundaries of real estate adversely possessed under s. 893.29, 1995 stats., or s. 893.25, 893.26 or 893.27 does not affect any section line or any section subdivision line established by the United States public land survey or any section or section subdivision line based upon it. 893.24(2)(2) Occupation lines that the court declares to be property lines by adverse possession under s. 893.29, 1995 stats., or s. 893.25, 893.26 or 893.27 shall, by order of the court, be described by a retraceable description providing definite and unequivocal identification of the lines or boundaries. The description shall contain data of dimensions sufficient to enable the description to be mapped and retraced and shall describe the land by government lot, recorded private claim, quarter-quarter section, section, township, range and county, and by metes and bounds commencing with a corner marked and established by the United States public land survey or a corner of the private claim. 893.24 HistoryHistory: 1985 a. 247; 1997 a. 108. 893.24 AnnotationIn the absence of an express provision to the contrary, one who adversely possesses under an earlier version of the adverse possession statute may continue possession under the terms of that statute even after its repeal and re-creation. DNR v. Building & All Related or Attached Structures, 2011 WI App 119, 336 Wis. 2d 642, 803 N.W.2d 86, 10-2076. 893.24 AnnotationHey! That’s my land! Understanding Adverse Possession. Shrestha. Wis. Law. Mar. 2010.
893.25893.25 Adverse possession, not founded on written instrument. 893.25(1)(1) An action for the recovery or the possession of real estate and a defense or counterclaim based on title to real estate are barred by uninterrupted adverse possession of 20 years, except as provided by s. 893.14 and 893.29. A person who, in connection with his or her predecessors in interest, is in uninterrupted adverse possession of real estate for 20 years, except as provided by s. 893.29, may commence an action to establish title under ch. 841. 893.25(2)(2) Real estate is possessed adversely under this section: 893.25(2)(a)(a) Only if the person possessing it, in connection with his or her predecessors in interest, is in actual continued occupation under claim of title, exclusive of any other right; and
