Are the neighbors required to move their shed?

Question:

The agent is listing a few parcels of vacant land, and one of the neighbors has an auxiliary structure (shed) encroaching on one of the lots the buyer is purchasing.

Are the neighbors required to move their shed? The agent recalls a previous instance where the code enforcement office claimed a shed was “grandfathered in” and the neighbor did not have to move his shed. Is this truly the case?

Answer:

The parties may wish to have a survey completed to check if there is an encroachment or encumbrance affecting the listed property. If the seller did not disclose the encroachment under item E14 on the Vacant Land Disclosure Report (VLDR), then the agent may have to disclose the encroachment as a material adverse fact.

Under Wis. Stat. § 893.25, adverse possession can be established by a person who has no deed or other recorded document giving the adverse possessor title by proving 20 years of uninterrupted adverse possession. Adverse possession applies only to the extent that the property is actually occupied, and the property must be protected by a substantial enclosure, or usually cultivated or improved. 

To show adverse possession, the adverse possessor, in connection with his or her predecessors in interest, must be in actual continued occupation of the property, exclusive of any other right. This and the other adverse possession statutes refer to what is commonly known as “tacking.” Tacking means that a current adverse possessor can add, or “tack,” their time of possession to that of a predecessor’s adverse possession in order to establish a continuous possession for the required number of years. A “predecessor in interest” generally will be the previous owner.

Historically, title holders protected their properties from adverse claimants by documenting that any party in possession is there by permission, or by obtaining the possessor’s acknowledgement that the possessor is there with the title holder’s knowledge and consent. Arguably, giving this permission would hinder the person’s ability to try and claim adverse possession because the element of hostility would be missing as a result of the property owner giving permission. 

If a person were to try to assert adverse possession, the person would need to bring legal action in court called an action to quiet title under Wis. Stat. Chap. 841.

It may be wise to have a survey done to confirm whether there is a problem, and if so, the extent thereof. An attorney might be able to help. The licensee may not provide the parties legal advice....   ...more