Forty years to enforce a shared-access cost-sharing easement — unless a side deal swallows it
Forty years to enforce a shared-access cost-sharing easement — unless a side deal swallows it
2026-09-21 · Wisconsin · Courts
A recorded easement said the Lot 2 owner maintains the shared access area and the owners of Lots 1 and 3 each reimburse a third. One party sent no invoice for nine years, then sent one. The question of whether that bill was still collectible produced a consolidated appeal and a useful map of how long these rights last in Wisconsin.
Market Square Associates, LLC v. Normandy Square, LLC and Normandy Square Condominium Association, consolidated Appeal Nos. 2023AP2215 and 2024AP120, was decided November 7, 2024 by District IV, per curiam — affirming in part, reversing in part, and remanding.1
The 2007 Easement Agreement created ingress and egress easements across three lots of a Dane County shopping centre, with a condominium association owning one of them. The structure — one party maintains, the others reimburse a fixed share — is exactly how Wisconsin developments handle shared driveways, private roads, stormwater basins and cross-parking with a neighbour.
Two clocks, not one
The parties argued about which limitations period applied. The court's answer was that it did not need to choose. ¶6:
“We need not resolve the parties' dispute about which limitations period applies, because we conclude that MSA's claim did not accrue for purposes of the six-year limitations period until the easement agreement was breached in 2017 and the forty-year limitations period has not yet elapsed. Therefore, the claim is not barred under either of the two limitations periods argued by the parties.”
The six-year clock is Wis. Stat. § 893.43(1): an action on a contract “shall be commenced within 6 years after the cause of action accrues or be barred.” Critically, it does not start when the expense is incurred. It starts when reimbursement is actually refused — here, 2017, on an invoice covering 2008 onward.
The forty-year provision is Wis. Stat. § 893.33(6): “Actions to enforce easements … set forth in any recorded instrument shall not be barred by this section for a period of 40 years after the date of recording such instrument.”
The correction the court made in a footnote
Footnote 9 fixes a mislabel both sides had made: “While the distinction is not in itself significant to our analysis, we note that the parties misidentify WIS. STAT. § 893.33(6), which limits actions from the date of recording of an easement rather than from the date of an alleged breach, as a statute of limitations. But § 893.33(6) is properly referred to as a statute of repose, not a statute of limitations.”
The difference is not academic. A statute of limitations runs from an event in the dispute and can be tolled or delayed in accrual. A statute of repose runs from recording and extinguishes the right on schedule regardless of when anything happened. So a recorded Wisconsin cost-sharing easement has an outer horizon fixed at forty years from the day it hit the register of deeds, inside which the ordinary six-year contract clock runs separately from each refusal to pay.
The trap, and it is the real story
The claim survived both clocks and still failed for six of the eleven years, because of a document that had nothing to do with the easement. ¶47:
“In sum on this issue, we conclude that the only reasonable interpretation of the language in the Lease is that, in entering into the Lease, MSA assumed sole responsibility for undertaking and paying for the maintenance of Lot 1, which includes the easement area on Lot 1.”
And the disposition, at ¶48: “we conclude that MSA's claim for reimbursement of the proportionate share of its easement area maintenance costs for 2008-2018 pursuant to its 2017 invoice is timely. We further conclude that the Lease is a defense to MSA's claim for reimbursement of the proportionate share of its easement area maintenance costs for 2012-2018.”
A parking lot lease, signed later and for its own reasons, assumed maintenance responsibility for an area that overlapped the easement. For the years the lease ran, the reimbursement right was gone. Nobody amended the easement; nobody had to.
Why a Wisconsin association is exposed to this specifically
Associations sign side agreements with neighbours constantly — snow removal arrangements, shared-lot parking accommodations, access licences for construction, stormwater maintenance understandings with an adjoining commercial owner. Each one allocates responsibility for ground that may also be covered by a recorded easement carrying its own cost-sharing formula.
The recorded instrument is durable: forty years of repose, and a fresh six-year window from each refusal. The later agreement is often a two-page document nobody records. On these facts the unrecorded later document is what determined who paid.
There is a second asymmetry worth noting. Because accrual runs from refusal rather than from expenditure, a maintaining party can let years accumulate and then invoice, and the claim is timely. The reimbursing party's exposure is not bounded by how long ago the work was done.
Our Wisconsin budget approval page covers how an association absorbs a liability of this shape, and collections and liens covers the recovery side.
What to watch next
The case went back to Dane County on the surviving years. As a per curiam decision it is not citable as precedent under Wis. Stat. Rule 809.23(3), but § 893.33(6) and § 893.43(1) are, and the accrual holding is a straightforward application of ordinary contract principles that a published case could adopt at any time. The unresolved question it leaves is priority: where a recorded easement and a later unrecorded agreement conflict, this decision reads them together on their facts rather than announcing a rule about which governs.
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