893.33(6m)(b) (b) An easement set forth in a recorded instrument that allows a person to travel across another's land to reach a location or for another specified purpose if any of the following applies:
893.33(6m)(b)1. 1. The instrument is recorded on or after January 1, 1960.
893.33(6m)(b)2. 2. An instrument is recorded before January 1, 1960, and a notice, the instrument, or an instrument expressly referring to the easement is recorded on or after January 1, 1960, and before the property is sold or transferred.
893.33(6m)(b)3. 3. The instrument or instruments expressly referring to the easement were recorded before January 1, 1960, and it is apparent from or can be proved from physical evidence of its use at such time when a person acquired the real estate subject to the easement.
893.33(7) (7)Only the following may assert this section as a defense or in an action to establish title:
893.33(7)(a) (a) A purchaser of real estate; or
893.33(7)(b) (b) A successor of a purchaser of real estate, if the time for commencement of an action or assertion of a defense or counterclaim under this section had expired at the time the rights of the purchaser in the real estate arose.
893.33(8) (8)If a period of limitation prescribed in s. 893.15 (5), 1977 stats., has begun to run prior to July 1, 1980, an action shall be commenced within the period prescribed by s. 893.15, 1977 stats., or 40 years after July 1, 1980, whichever first terminates.
893.33(9) (9)Section 893.15, 1977 stats., does not apply to extend the time for commencement of an action or assertion of a defense or counterclaim with respect to an instrument or notice recorded on or after July 1, 1980. If a cause of action is subject to sub. (8) the recording of an instrument or notice as provided by this section after July 1, 1980 extends the time for commencement of an action or assertion of a defense or counterclaim as provided in this section, except that the time within which the notice or instrument must be recorded if the time is to be extended as to purchasers is the time limited by sub. (8).
893.33 Note Judicial Council Committee's Note, 1979 [deleted in part]: This section is based primarily on previous 893.15. That section, an interesting combination of limitations statute and marketable title statute, was of significant help to real estate titles since enactment in 1941. The beneficial effects were strengthened and expanded by enactment of s. 706.09 in 1967. This draft preserves the useful essence of previous s. 893.15, while updating some language. Changes which affect substance are:
893.33 Note (1) The 60-year provision relating to easements and covenants is reduced to 40 years.
893.33 Note (2) New subs. (8) and (9) are transitional provisions applying to limitation periods already running the period specified in previous s. 893.15, or the period in this statute, whichever is shorter.
893.33 Note (5) This draft makes explicit that only those who purchase for valuable consideration after the period of limitation has run or their successors may avail themselves of the benefits of this statute. There is no requirement that the purchaser be without notice, which is to be contrasted with s. 706.09 of the statutes where periods far shorter than 30 years are specified in many subsections. [Bill 326-A]
893.33 Annotation “Transaction or event" as applied to adverse possession means adverse possession for the time period necessary to obtain title. Upon expiration of this period, the limitation period begins running. Leimert v. McCann, 79 Wis. 2d 289, 255 N.W.2d 526 (1977).
893.33 AnnotationThis section protects purchasers only. State v. Barkdoll, 99 Wis. 2d 163, 298 N.W.2d 539 (1980).
893.33 Annotation A public entity landowner was not protected from a claim that was older than 30 years. State Historical Society v. Maple Bluff, 112 Wis. 2d 246, 332 N.W.2d 792 (1983).
893.33 Annotation Hunting and fishing rights are an easement under sub. (6). There is no distinction between a profit and an easement. Figliuzzi v. Carcajou Shooting Club, 184 Wis. 2d 572, 516 N.W.2d 410 (1994).
893.33 Annotation If a nuisance is continuing, a nuisance claim is not barred by the statute of limitations; but if it is permanent, it must be brought within the applicable statute period. A nuisance is continuing if it is ongoing or repeated but can be abated. A permanent nuisance is one act that causes permanent injury. Sunnyside Feed Co. v. City of Portage, 222 Wis. 2d 461, 588 N.W.2d 278 (Ct. App. 1998), 98-0709.
893.33 Annotation The sub. (5) owner-in-possession exception to the sub. (2) 30-year recording requirement applies to adverse possession claims. O'Neill v. Reemer, 2003 WI 13, 259 Wis. 2d 544, 657 N.W.2d 403, 01-2402. See also O'Kon v. Laude, 2004 WI App 200, 276 Wis. 2d 666, 688 N.W.2d 747, 03-2819.
893.33 Annotation The owner-in-possession exception found in sub. (5) does not apply to holders of a prescriptive easement because such holders are not owners. Once the right to a prescriptive easement has accrued by virtue of compliance with s. 893.28 (1) for the requisite 20-year period, the holder of the prescriptive easement must comply with the recording requirements within 30 years under sub. (2) or lose the right to continued use. Schauer v. Baker, 2004 WI App 41, 270 Wis. 2d 714, 678 N.W.2d 258, 02-1674.
893.33 Annotation More specific statutes govern a municipality's interest in an unrecorded highway and therefore the 30-year recording requirement under this section does not apply to a municipality's interest in an unrecorded highway. City of Prescott v. Holmgren, 2006 WI App 172, 295 Wis. 2d 627, 721 N.W.2d 153, 05-2673.
893.33 Annotation An easement continuously recorded since 1936 for which no efforts were made to establish and use it until the 1990's was not abandoned. Spencer v. Kosir, 2007 WI App 135, 301 Wis. 2d 521, 733 N.W.2d 921, 06-1691.
893.33 Annotation The label of the documents here—“access easement agreement"—and the fact that each was signed by both parties did not transform the grants of easement into contracts subject to contract law. The plaintiffs alleged that a driveway could not be built on the easements described in the agreements because of a wetland delineation and sought a modification of the easements. This claim for relief was an action to enforce the recorded easements, albeit a modified version, and was therefore governed by sub. (6), not the contract statute, s. 893.43. Mnuk v. Harmony Homes, Inc., 2010 WI App 102, 329 Wis. 2d 182, 790 N.W.2d 514, 09-1178.
893.33 Annotation An owner-in-possession exception to the statute of limitations applies to owners by adverse possession. The party who initially adversely possessed land for the necessary period of time is not required to continue to “adversely" possess the disputed property to benefit from the exception. At the end of the applicable adverse possession period, title vests in the adverse possessor and the record owner's title is extinguished. Engel v. Parker, 2012 WI App 18, 339 Wis. 2d 208, 810 N.W.2d 861, 11-0025.
893.33 Annotation This section provides no exception to the limitations period under sub. (6) for enforcement of an easement against a purchaser who had actual notice of the easement. TJ Auto LLC v. Mr. Twist Holdings LLC, 2014 WI App 81, 355 Wis. 2d 517, 851 N.W.2d 831, 13-2119.
893.33 Annotation A survey map filed in the office of register of deeds was not a “recording" that renews the limitations period under sub. (6). To record an instrument, s. 59.43 (1) (e) and (f) require the register of deeds to endorse upon it a certificate of the date and time when it was received as well as a number consecutive to the number assigned to the immediately previously recorded or filed instrument. Without those marks of recording by the register of deeds, there is no basis from which a court can presume that the survey map was recorded. TJ Auto LLC v. Mr. Twist Holdings LLC, 2014 WI App 81, 355 Wis. 2d 517, 851 N.W.2d 831, 13-2119.
893.34 893.34 Immunity for property owners. No suit may be brought against any property owner who, in good faith, terminates a tenancy as the result of receiving a notice from a law enforcement agency under s. 704.17 (1p) (c), (2) (c) or (3) (b).
893.34 History History: 1993 a. 139; 2017 a. 317, s. 54.
893.35 893.35 Action to recover personal property. An action to recover personal property shall be commenced within 6 years after the cause of action accrues or be barred. The cause of action accrues at the time the wrongful taking or conversion occurs, or the wrongful detention begins. An action for damage for wrongful taking, conversion or detention of personal property shall be commenced within the time limited by s. 893.51.
893.35 History History: 1979 c. 323.
893.35 Note Judicial Council Committee's Note, 1979: This section is based on previous s. 893.19 (6), without change in substance, but with some expansion of language to make clear that accrual of the cause of action is not delayed until the person bringing the action learns of the wrongful taking or detention. The limitation with respect to an action for damages is contained in s. 893.51. [Bill 326-A]
893.35 Annotation A wrongful detention claim is separate from a conversion claim. A wrongful detention claim may arise against a possessor of previously converted or wrongfully taken property. Under those facts, a wrongful detention claim is available and, for purposes of this section and s. 893.51 (1), accrues at the time the property is obtained. No demand is necessary. Mueller v. TL90108, LLC, 2020 WI 7, 390 Wis. 2d 34, 938 N.W.2d 566, 17-1962.
893.35 Annotation This section and s. 893.51 (1) are statutes of repose, not statutes of limitation. A statute of repose provides that a cause of action must be commenced within a specified amount of time after the defendant's action that allegedly led to injury, regardless of whether the plaintiff has discovered the injury or wrongdoing. With regard to a wrongful detention claim, the statutes focus on when the wrongful detention begins, not when the property owner discovers or knows of the detention. Mueller v. TL90108, LLC, 2020 WI 7, 390 Wis. 2d 34, 938 N.W.2d 566, 17-1962.
893.36 893.36 Secured livestock.
893.36(1g)(1g)In this section:
893.36(1g)(a) (a) “Buyer in ordinary course of business" has the meaning provided by s. 401.201 (2) (em).
893.36(1g)(b) (b) “Collateral" has the meaning provided by s. 409.102 (1) (cs).
893.36(1g)(c) (c) “Debtor" has the meaning provided by s. 409.102 (1) (gs).
893.36(1g)(d) (d) “Market agency" means a person regularly engaged in the business of receiving, buying or selling livestock whether on a commission basis or otherwise.
893.36(1g)(e) (e) “Secured party" has the meaning provided by s. 409.102 (1) (rs).
893.36(1g)(f) (f) “Security agreement" has the meaning provided by s. 409.102 (1) (s).
893.36(1m) (1m)An action by a secured party to recover damages or property, based upon the sale of livestock which when sold is the secured party's collateral, against the market agency which in the ordinary course of business conducts the auction of the livestock, or against a buyer in ordinary course of business shall be commenced within 2 years after the date of sale of the livestock, or be barred, if:
893.36(1m)(a) (a) The debtor signs or endorses any writing arising from the transaction, including a check or draft, which states that the sale of the livestock is permitted by the secured party; and
893.36(1m)(b) (b) The secured party does not commence an action, within 2 years after the date of sale of the livestock against the debtor for purposes of enforcing rights under the security agreement or an obligation secured by the security agreement.
893.36(2) (2)This section does not apply to actions based upon a sale of livestock occurring prior to April 3, 1980, nor to an action by a secured party against its debtor. Section 893.35 or 893.51 applies to any action described in sub. (1m) if the limitation described in sub. (1m) is not applicable.
893.37 893.37 Survey. No action may be brought against an engineer or any professional land surveyor, as defined in s. 443.01 (7m), to recover damages for negligence, errors, or omission in the making of any survey nor for contribution or indemnity related to such negligence, errors, or omissions more than 6 years after the completion of a survey.
893.37 History History: 1979 c. 323 s. 3; Stats. 1979 s. 893.36; 1979 c. 355 s. 228; Stats. 1979 s. 893.37; 2013 a. 358.
893.37 Annotation The discovery rule applies to statutes of limitations that limit the time to sue from the time when the action “accrues," being the time of discovery. The discovery rule does not apply to this section because it is a statute of repose, a statute that specifies the time of accrual (in this statute the time when the injury occurred) and limits the time suit can be brought from that specified date. Tomczak v. Bailey, 218 Wis. 2d 245, 578 N.W.2d 166 (1998), 95-2733.
893.38 893.38 Extension of certain approvals.
893.38(1)(1)Definitions. In this section:
893.38(1)(a) (a) “Challenged permit” means a permit or other approval to which all of the following apply:
893.38(1)(a)1. 1. The permit or other approval authorizes a construction project.
893.38(1)(a)2. 2. The application for the permit or other approval includes a description of the construction project.
893.38(1)(a)3. 3. The permit or other approval was issued by a governmental unit and becomes or remains subject to administrative, judicial, or appellate proceedings, whether or not any proceeding reversed the permit or other approval.
893.38(1)(a)4. 4. The permit or other approval has or had a finite term or duration, and the term or duration has not expired.
893.38(1)(a)5. 5. The permit or other approval is the subject of administrative, judicial, or appellate proceedings that may result in the invalidation, reconsideration, or modification of the permit or approval, provided that the proceedings or, if the proceedings are reviewing another decision, the proceedings originating the review proceedings were initiated by a person other than the holder of the permit or approval.
893.38(1)(b) (b) “Challenged plat or survey” means a plat or certified survey map approval that is the subject of administrative, judicial, or appellate proceedings that may result in the invalidation, reconsideration, or modification of the approval, provided that the proceedings, or, if the proceedings are reviewing another decision, the proceedings originating the review proceedings were initiated by a person other than the holder of the approval.
893.38(1)(c) (c) “Construction project” means organized improvements to real property that include the construction or redevelopment of at least one building for occupancy.
893.38(1)(d) (d) “Covered approval” means a challenged permit or challenged plat or survey.
893.38(1)(e) (e) “Governmental unit” means the department of natural resources, the department of transportation, a city, a village, a town, a county, or a special purpose district.
893.38(2) (2)Automatic extension. A person who has received a covered approval shall obtain an automatic extension of the covered approval by notifying the governmental unit that issued the covered approval of the person's decision to exercise the extension not more than 90 days nor less than 30 days before the expiration of the unextended term or duration of the covered approval. A notification under this subsection shall be in writing and shall specify the covered approval extended. This subsection does not apply to a covered approval for which an automatic extension is not allowed under applicable federal law.
893.38(3) (3)Term of extension. The term or duration of a covered approval extended under sub. (2) is an amount of time equal to 36 months plus the duration of the administrative, judicial, or appellate proceedings to which the covered approval is subject. For purposes of calculating the duration of administrative, judicial, or appellate proceedings under this subsection, proceedings begin on the date of the initial filing of the proceedings, or, if the proceedings are reviewing another decision, the proceedings originating the review proceedings and end on the date of the final order disposing of all proceedings.
893.38(4) (4)Effect of orders. A covered approval extended under sub. (2) is subject to any order concerning the covered approval that is issued in an administrative, judicial, or appellate proceeding, including a suspension, injunction, restraining order, invalidation, reconsideration, or modification.
893.38(5) (5)Change of law. Except as provided in s. 66.10015, the laws, regulations, ordinances, rules, or other properly adopted requirements that were in effect at the time the covered approval was issued shall apply to the construction project, plat, or certified survey map during the period of extension. This subsection does not apply to the extent that a governmental unit demonstrates that the application of this subsection will create an immediate threat to public health or safety.
893.38(6) (6)Regulation of safety and sanitation. This section does not limit any state or local unit of government from requiring that property be maintained and secured in a safe and sanitary condition in compliance with applicable laws, administrative rules, or ordinances.
893.38(7) (7)Exceptions. This section does not apply to any of the following:
893.38(7)(a) (a) A covered approval under any programmatic, regional, or nationwide general permit issued by the U.S. army corps of engineers.
893.38(7)(b) (b) A covered approval that authorizes a water pollutant discharge under s. 283.31, 283.33, or 283.35 or construction or operation of a stationary source under s. 285.60.
893.38(7)(c) (c) The holder of a covered approval who is determined by the issuing governmental unit to be in significant noncompliance with the conditions of the covered approval as evidenced by written notice of violation or the initiation of a formal enforcement action.
893.38 History History: 2021 a. 80; 2021 a. 240 s. 30.
subch. IV of ch. 893 SUBCHAPTER IV
ACTIONS RELATING TO CONTRACTS
AND COURT JUDGMENTS
893.40 893.40 Action on judgment or decree; court of record. Except as provided in ss. 846.04 (2) and (3) and 893.415, action upon a judgment or decree of a court of record of any state or of the United States shall be commenced within 20 years after the judgment or decree is entered or be barred.
893.40 History History: 1979 c. 323; 1997 a. 27; 2003 a. 287.
893.40 Note Judicial Council Committee's Note, 1979: This section has been created to combine the provisions of repealed ss. 893.16 (1) and 893.18 (1). A substantive change from prior law results as the time period for an action upon a judgment of a court of record sitting without this state is increased from 10 years to 20 years and runs from the time of entry of a judgment. The separate statute of limitations for an action upon a sealed instrument is repealed as unnecessary. [Bill 326-A]
893.40 Annotation The defendant was prejudiced by an unreasonable 16-year delay in bringing suit; thus laches barred suit even though the applicable limitation period did not. Schafer v. Wegner, 78 Wis. 2d 127, 254 N.W.2d 193 (1977).
893.40 Annotation A request by the state or an offender to correct a clerical error in the sentence portion of a written judgment to reflect accurately an oral pronouncement of sentence is not an “action upon a judgment" under this section. State v. Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857, 98-2263.
893.40 Annotation This section clearly and unambiguously specifies that the date when a cause of action to collect past-due child support payments begins to run is the date when a judgment ordering payments is entered. State v. Hamilton, 2003 WI 50, 261 Wis. 2d 458, 661 N.W.2d 832, 01-1014.
893.40 Annotation Under the circumstances present in this case where a statute precluded a provision in a judgment, the statute of repose could not begin to run as to that provision until the legislature changed the law such that the provision could be carried out. Johnson v. Masters, 2013 WI 43, 347 Wis. 2d 238, 830 N.W.2d 647, 11-1240.
893.40 Annotation This section did not bar an action to enforce a divorce judgment that required a party to divide the party's pension only “when and if” the pension became “available” to the party because it was impossible to judicially enforce that requirement during the first 21 years after the divorce judgment. Schwab v. Schwab, 2021 WI 67, 397 Wis. 2d 820, 961 N.W.2d 56, 19-1200.
893.41 893.41 Breach of contract to marry; action to recover property. An action to recover property procured by fraud by a party in representing that he or she intended to marry the party providing the property and not breach the contract to marry, to which s. 768.06 applies, shall be commenced within one year after the breach of the contract to marry.
893.41 History History: 1979 c. 323; 1981 c. 314 s. 146.
893.41 Note Judicial Council Committee's Note, 1979: This section has been created to place into ch. 893 the statute of limitations for an action to recover property for an alleged breach of a contract to marry. See also note following s. 768.06. [Bill 326-A]
893.415 893.415 Action to collect support.
893.415(1)(1)In this section, “action" means any proceeding brought before a court, whether commenced by a petition, motion, order to show cause, or other pleading.
893.415(2) (2)An action to collect child or family support owed under a judgment or order entered under ch. 767, or to collect child support owed under a judgment or order entered under s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4. or (4g) (a), 938.357 (5m) (a), 938.363 (2), or 948.22 (7), shall be commenced within 20 years after the youngest child for whom the support was ordered under the judgment or order reaches the age of 18 or, if the child is enrolled full-time in high school or its equivalent, reaches the age of 19.
893.415(3) (3)An action under this section is commenced when the petition, motion, order to show cause, or other pleading commencing the action is filed with the court, except that an action under this section is not commenced if proper notice of the action, as required by law or by the court, has not been provided to the respondent in the action within 90 days after the petition, motion, order to show cause, or other pleading is filed.
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2019-20 Wisconsin Statutes updated through 2021 Wis. Act 267 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on December 9, 2022. Published and certified under s. 35.18. Changes effective after December 9, 2022, are designated by NOTES. (Published 12-9-22)