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BizAttorney
BizAttorney, Attorney
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Experience:  Over 12 years of business and legal experience.
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Ma and Pa drilled the well in 1959. They built the new house

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Ma and Pa drilled the well in 1959. They built the new house in 1975. Pa died in 2001. A couple months later, Ma was convinced to deed the parcel with the well to son and daughter-in-law. Ma died last year. Little sister wants to stay in the house, where she had been caring for Ma the last 10 years. Brother and sister-in-law want to cut off the water. Can they legally do that? No written agreements, etc. in place. I am eldest and Trustee. It's tearing things apart here in Wisconsin.

BizAttorney :

Good evening! I can help you out with your legal question tonight.

BizAttorney :

When your Ma deeded the property with the well rights to the son-in-law, did she give anyone a life estate?

BizAttorney :

This is where she grants someone (like your little sister) rights in the land for as long as she lives.

BizAttorney :

Do you know how the property was deeded from your Ma?

Customer:

Ma continued to live in the house, using the water for over 10 years after executing the deed. The deed was to son. Immediately succceeding document recorded created joint tenancy--son and daughter-in-law. There was no life estate interest in the parcel that the well is on. Money does not appear to be the object in this dispute.

BizAttorney :

I understand. As the son and dauther-in-law are now the owners of the property, they would be able to evict your little sister legally and cut off the water.

BizAttorney :

They would have to evict her legally if she won't leave.

Customer:

The Trust owns the house. The well is on an adjoining vacant parcel. 'Son and daughter-in-law' have no existing ownership interests in the house and the lot it sits on.

BizAttorney :

I see, so the owner of the property is the Trust. Who does the trust say gets the property? I thought you said Ma deeded the parcel to the son?

Customer:

The parcel deeded was the adjoining vacant parcel with the well on it. The Trust owns the house which is on a separate lot. The Trust can convey the house to anyone as long as all beneficiaries receive equal renumeration. Money and balancing the distributions are not the problem. The question is: Does the 'house' have a legal right to use the water/well that has served it since it was built in 1975? We are in Wisconsin.

BizAttorney :

No, not automatically. The owner of the property with the well has complete right to do whatever the owner wants with that water. The house is not entitled to use the water because it has in the past. The only time a parcel of property is required to "give" rights to another person, is if the parcel is landlocked and an owner of the subserviant property cannot access it without ingress rights from another parcel.

BizAttorney :

Is the son a beneficiary of the Trust?

BizAttorney :

If he is, there may be an argument that he is not allowed to waste assets in the trust. Essentially if the house is not allowed to have water and that house is in the trust, then restricting the water could be causing waste to the assets of the trust.

Customer:

I apologize. I re-read my initial inquiry and realize I should have been more clear that they built the house on an adjoining parcel.

Customer:

The son is one of 4 beneficiaries. The 'wasting assets' argument is interesting. I am not an attorney but I have reviewed parts of Wi Stats Chapter 829 and 843 and wonder about the possibility of using them to gain a writ.

BizAttorney :

Please give me one moment to access those statutes.

BizAttorney :

Chapter 829 doesn't apply. Let me check 843

BizAttorney :

843 doesn't apply either. They don't give you any relief unfortunately.

BizAttorney :

I would look at the waste argument as that is the only real argument you can have from the facts you have given me.

Customer:

Pardon me again. Chapter 893.28

BizAttorney :

You will need to focus on how the property is not as valuable as it should be because of the son's choices.

BizAttorney :

Let me review 893.28

BizAttorney :

That doesn't help you either. That is regarding adverse possession to those rights. Your Ma died last year, so your little sister would have to adversely take the water another 19 years before that statute could apply.

Customer:

But Ma and/or the 'Ma and Pa Trust' have continuously exercised those rights since 1975, and before that, in the old house. That Trust is still the owner of record.

BizAttorney :

It won't matter. It was not done adversely at all. No court would count that time as adverse time.

BizAttorney :

Adverse time would be when someone takes the water in defiance of another.

Customer:

"Openly and notoriously, without objection" doesn't matter? Son/daughter-in-law's 'permissive' use by Ma that continued for 10+ years after the first 25+ years doesn't matter either?

BizAttorney :

It has to be continuous and be adverse. What you are describing is neither.

Customer:

Thank you for your time and effort. I do appreciate it.

BizAttorney :

You are welcome. Focus on the waste issue, it is your strongest point. Good luck and have a good night!

BizAttorney :

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