Attention!

Attention Wisconsin lake-shore owners. You do not own the natural lake you see.

You may be one of the thousands of property owners across the state that have been sold lake land you cannot legally buy and do not own.

Perhaps your dream home or get-away cabin sits by a lovely lake, and you look out and think: This slice of heaven is mine.

Sadly, it is not.

The fact is no matter what you see out your window; no matter how much you paid; no matter what your real-estate agent said; no matter what your deed reads; the legal fact is: You cannot and do not own the lake.

           Nonetheless, lake land is being bought and sold all the time. But the lakes are public land. And it is illegal to buy them—and impermissible to pay taxes on them.

Free Water

“The water belongs to the state…and the natural lakebeds belong to the state,” said Edwina Kavanaugh, an attorney with the Department of Natural Resources.

Her legal position descends from the highest state law.

According to the Wisconsin Constitution, Article IX § 1, all natural lakes are “forever free” and held in public trust; they belong to the people. So selling them should never happen.

            “It happens quite a bit, actually,” said Dan Harrington, water management specialist with the DNR.

The state owns all the natural lakes, big or small. Yet this public property is being illegally sold to an unsuspecting public all the time. Tens of thousands of people across the state are being sold a bill of goods.

“It sounds to me like they’re buying the Brooklyn Bridge,” said Don Marjala, a real-estate attorney. “I’ve been doing this for 32 years now, and I know of no one who has (legally) bought a lake,” he said.

“A lake that’s navigable… it’s public land up to the high water mark,” he said. “You can’t buy it; you can’t sell it.”

Do nothing DNR

But despite what the law of the land says, public lakes are constantly being sold under the state’s watchful eye. And the DNR is doing little to nothing to protect Mr. and Mrs. Buyer.

“What is important to land owners is the Department (DNR) recognized the problem,” said Senator Dale Schultz. They must be, “willing to be a full partner, and are willing to begin the process of working through this issue.”

Two years ago, I first wrote about this process of selling public-lake lands. Since then it has generated a lot of media and legislative attention. And now it even got the DNR involved, demanding a column update. 

Despite repeated attempts, DNR Sec. Matthew Frank could not be reached for a live interview. However he did respond to a formal, senatorial request.

In a response letter to Sen. Sheila Harsdorf from Sec. Frank, he wrote: “I share your interest in helping protect other buyers from similar situations.”

And he acknowledged the buying of public-lake lands does “occasionally occur.”

Occasionally?

The DNR estimates there are “approximately 11,500 lakes less than 20 acres.” These were not meandered in the original government survey. It is safe to say that folks living at these 11,500 places across 72 counties have a property problem.

Local examples

I know of several examples in Polk County alone.

Four years ago I bought 16 acres, adjoining Young Lake—a beautiful un-meandered lake of 30 acres.

After a review of my deed and county-survey markers, it was revealed that I was illegally sold 12 acres of the lake. I contacted the selling realtor. Their lawyers reviewed my case and refunded me $12,200.

My neighbors on Little Pine Lake are in the same quagmire.

James and Cheryle Nesser own nearly 60 acres, which border Little Pine Lake. Last year they subdivided their property and had it surveyed. It was revealed that some 15 acres they bought were in the lake; property they were illegally sold and public land they were impermissibly paying taxes on.

Government records show that from 2007 to 2008, the Nessers will now save $431.58 on their property taxes after the public-lake property was reassessed and correctly removed from their property description, said Amanda Nissen, Polk County treasurer.

The Nessers’ neighbor across the lake is in a similar fix.

In 1992 a parcel of land of 100 feet by 750 feet was purchased in good faith. But it turns out “there’s more under water than isn’t,” said the owner, Dr. Phillip Keezer, an advisor for Campus Crusade for Christ International.

He estimates 400 feet of the real-estate deal he was sold is out in the lake, which is “the majority” of his property.

This was no mistake. His real-estate agent gave him a “sketch of the property, which clearly showed it is in the lake.” And then assured him, “it’s good that you have that (property) under water, because then you have enough (shoreline) to rebuild if you need to,” Dr. Keezer recalls.

After a history of 16 years on Little Pine Lake, Dr. Keezer looks out across the lake and at his neighbors and surmises: “I’m sure everybody owns property in the lake.”

The question for him and tens of thousands of others is: “Why didn’t the realtor know?” Dr. Keezer asks. And, “why did he sell it to me?”

Knowledge key

The answer is knowledge.

“They may not have understood the lake was not meandered,” said Duane Wisse, a realtor-broker with Edina Realty in Frederic. “If it’s not meandered and it goes out into the lake and the deeds are drawn that way, the broker goes by what the deed says.”

Realtors are more “unsuspecting” than “incompetent,” Wisse said. The training and testing they get from the state on this lake matter is practically zilch.

Wisconsin proudly boasts of 15,081 documented lakes, with an estimated 11,500 undocumented lakes of 20 acres or less. There are thousands more between 30 and 40 acres. The total number is huge and the lakes are everywhere and obvious.

Yet when Wisse took his state exam in 1975 “there was nothing on it” regarding the selling of public-lake lands. And after 33 years in the business, he’s never encountered the topic in any state-mandated continuing-education class.

            “I don’t think you could say that (lake questions) are common” on the test, said Barbara Showers, director of Office of Education and Exams, Department of Regulation and License in 2006.

           “There has started to be interest in this area, so I think we will try to work a question in at least,” said the now-retired director.

            However this year, “we did go through our entire item bank with subject matter experts,” said Susan Bird, of the department of regulation. “They went through and made sure that all the questions are up to date for the current exam.”

And is there any question on the exam about the vast and wide-spread selling of public-lake lands?

“I’m not sure,” she said.

Solution with state

The solution to the lake problem does not lie with the buyers—they’re victims buying in good faith.

The solution lies with the owners.

The state has claimed all the natural lakes through a long series of legal fights and court rulings. They’ve spent years and years and millions and millions in tax dollars to scour the land and grab all of the lake property.

Now that they’ve got what they worked so hard for, they say they can’t afford the time and money to take care of business.

“Completing formal surveys of each lake would cost approximately $11.4 million,” wrote Sec. Frank. Besides it would, “require hiring or redirecting 40 staff, and take four years to complete.”

Asking the state to spend an average of $991.30 to take care of its property, which encumbers thousands of people’s deeds, which was illegally sold, which people are impermissibly paying taxes on every year, is just too much to ask.

But it’s not too much to ask of the public.

“Buyers who unknowingly purchase state-owned lakebed may have legal recourse against parties in the transaction,” wrote Sec. Frank.

DNR responsibility

It’s the DNR’s responsibility to get their lake land out of people’s land deeds—not the other way around. Yet they suggest the burden be on simple people to sue their neighbors to make DNR matters right.

“You have to litigate to determine your rights?” said Sen. Schultz. “It’s just insulting.”

And it’s bad public relations.

“The (DNR) agency wonders why they have the public relations problem that they have,” said Sen. Schultz. “What they have to do is deal rightly with people on issues that are important—and this is a classic example.”

The DNR does offer some out-of-court solutions: check out their Web site, addendums to real-estate documents, updating platting laws and more survey training.

The DNR also wonders if a local assessor can go out and simply separate land from water and make things right.

“I know certified surveys are not cheap,” said DNR Chief Biologist Byron Dale Simon. “And I’m just struggling with, is it reasonable to require somebody” to get an expensive survey. Or can a local town assessor, “make an assessment based upon what you see in the field?”

It’s obvious if you buy 16 acres and only four is above the water that the other 12 must be under the water. Right? Maybe.

Not the assessor

“The assessor does not change the legal description of property,” said Jessica Iverson, department of revenue spokesperson. “The assessor uses whatever is in that legal description to determine the value, not the other way around.”

This state-wide problem is being shuffled from one state agency to another, while the public gets the shaft. It’s a bureaucratic “cop out,” said Sen. Schultz.

“That’s not unusual for agencies that don’t want to be bothered,” he said. “That’s a game that is often-time played with the legislature.”

Games played

Games aside, the problem remains.

“When government has done something inappropriately, it shouldn’t take using your own personal resources to correct it,” said Sen. Harsdorf.

“The real problem here is you have an agency that does not want to do something,” she said. “And that’s going to be the challenge.”

Besides the DNR being problematic, “the administration needs to get on board, being willing to begin to assess the situation,” she added.

After I called and assessed the situation for Gov. Jim Doyle’s office, the response was: “We’ll get back with you,” said Carla Vigue, media spokesperson.

They never got back with me.

People waiting

Meanwhile, tens of thousands in Wisconsin are waiting and looking to the governor for some help. His signature in any legislative bill is vital.

“First and foremost, the governor has to be willing to sign it,” said Sen. Harsdorf. “You still need the governor’s support.”

For now the DNR’s budget forecast sees no money “available for this work,” stated Sec. Frank.

That leaves innocent people who were illegally sold public-lake land, are being sold lake land, and in the future will buy lake land, a bill of wet goods.

And to make matters worse, all those folks keep paying taxes on land they do not and cannot own.

This is a steady stream of illegal tax revenue the state may not want to give up.