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Q: Adverse possession of land in New Jersey ( Answered 5 out of 5 stars,   3 Comments )
Question  
Subject: Adverse possession of land in New Jersey
Category: Reference, Education and News > General Reference
Asked by: ennyl-ga
List Price: $75.00
Posted: 04 Jun 2005 01:48 PDT
Expires: 04 Jul 2005 01:48 PDT
Question ID: 529224
1) In New Jersey a 30 year period must be established in order for a
person who uses and cultivates (mows, plants, seeds, etc.) land to
which he does NOT hold legal title to be able to claim that land
legally. I need examples that show the original title holder just
cannot have casual conversations with the adverse possessor in the
29th year in order for the 30 years of adverse possession to fall
short of the 30 year mark. I need examples where the court has said
the title holder must take ACTION in the form of a letter or offical
legal notice ordering the adverse possessor to GET OFF the land before
the meter stops running on the 30 years. (I began having conversations
with the title holder 29 years after a fence went up on the title
holder's land. In these conversations I told him the land was mine
through adverse possesion. He did not order me off and did not serve
me official notice to get off the land until 34 years after the fence
went in.)
2) I need to show that by placing a fence or structure about half-way
across a parcel of residental land designated as a legal "lot" (size:
about 1/3 of an acre) for more than 30 years and using and maintaining
the land on the other side of the fence as well, can result in the
adverse possessor of the land being able to acquire the entire lot,
legally, not just the area to the fence.

Request for Question Clarification by pafalafa-ga on 04 Jun 2005 04:32 PDT
Hello ennyl-ga,

Interesting situation!

I can certainly look into the case law in NJ on adverse possession --
there are dozens of cases on this topic.

However, I have no way of knowing in advance what precedents are set
by these cases, and if they would support -- or not support -- your
position on the two things you asked about.

The best I can offer is to look for supporting cases, and to review
and summarize what I find.  But I can't promise finding a cases or
cases that support your positions regarding actions taken, or the size
of the claim.

Of course, there may be cases that perfectly support your positions. 
But then again, there may not be.

Let me know if you would like me to proceed.

pafalafa-ga

Clarification of Question by ennyl-ga on 04 Jun 2005 05:30 PDT
Hi. Thank you. I am aware of a number of adverse possession cases in
NJ already, but they have not been looked at with regard to my
questions #1 and #2. (The answers then addressed the definition of
"cultivated.") I'd say, yes, please proceed. And it might also be
helpful to include the other states as well. The criteria for adverse
possession is not consistent at 30 years state-to-state, but decisions
from those judges might support my contention that you have to be "put
on written notice" for the clock to stop.

Also, is there a "statute of limitations" from the time the title
holder says something about the adverse possession to the time he
takes legal steps? Maybe that will show up too in your investigation.
Maybe my adversary took too long in taking legal action.

Thanks.

Request for Question Clarification by pafalafa-ga on 05 Jun 2005 17:04 PDT
ennyl-ga,

I've had a look at some of the NJ case law, but do not see anything
that really lends support to your particular situation.  It may be out
there, but I haven't come across it yet.

As for searching other states, and statute of limitations issues, I'm
afraid that would be a considerable expansion of your original
question, and one that I am not prepared to undertake at this time.

Perhaps another researcher will be able to assist you, however.

Best of luck with your situation.

paf
Answer  
Subject: Re: Adverse possession of land in New Jersey
Answered By: hagan-ga on 17 Jun 2005 12:40 PDT
Rated:5 out of 5 stars
 
Your instincts about the time limits are correct.  The reason that
adverse possession results from a long period of "squatting" is that
the *statute of limitations* on an action for ejectment or quiet title
starts to run when the true owner should have noticed that his
property was being used by somebody else.  It isn't that the passage
of time somehow creates a deed in your name -- it's that the true
owner only has a certin amount of time (30 years in NJ) to *enforce*
his property rights, or he loses them.
Talking is not enforcement.  Even a written demand is not enforcement,
if it isn't obeyed.  Once the true owner is "on notice" of the hostile
use of his property by another, he must *act* to recover possession. 
Usually, that means:

calling the police to remove you
building a fence to keep you out
bringing an action for ejectment or quiet title in court

The only way to interrupt a hostile occupier's "adverse possession" of
land is to *interrupt his possession,* either through legal process or
force.  Although I could not find any New Jersey cases on this point,
it's both well established and fundamental to the concept of "adverse
possession."

Here's some relevant language from California:
"An interruption of an adverse use results only from an act of one
against whom the use is adverse. The act may consist in either, (1)
bringing and pursuing to judgment legal proceedings in which the use
is determined to be without legal justification, or (2) producing a
cessation of the use without the aid of legal proceedings." Sevier v.
Locher (1990) 222 Cal.App.3d 1082, 1086, quoting Masin v. LaMarche
(1982) 136 Cal.App.3d 687, 694.

From Colorado:
"Therefore, where the claimant has been in possession for the required
period, the record owner must show an interruption of some aspect of
the possession to defeat the claim; mere assertion of a claim of
record ownership is not sufficient. Indeed, the claimant?s recognition
of the owner?s record title while claimant remains in possession
strengthens the adverse possession claim. Schoenherr v. Campbell, 172
Colo. 306, 472 P.2d 139 (1970).
'To disrupt the adverse possession claim, the record owner must assert
a claim to the land or perform an act that would reinstate him in
possession.' Bushey v. Seven Lakes Reservoir Co., 37 Colo. App. 106,
109, 545 P.2d 158, 161 (1975). See also 16 Richard R. Powell, Powell
on Real Property  91.07[2] (1999)(owner can interrupt claimant?s
adverse possession by obtaining a judgment against claimant or by
openly entering the property with intent to take possession and
effectively exclude the claimant); 4 Herbert T. Tiffany, The Law of
Real Property  1161 (3d ed. 2000)(adverse possession is interrupted
by the owner?s entry on the land for the purpose of taking possession
or by legal action to recover possession)."
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=co&vol=2001app%5Cct10117&invol=1

The Colorado case cited above dealt with a true owner who attempted to
defeat an adverse possession claim by citing his efforts to subdivide
the property in question during the period of possession.  The
Colorado court did NOT consider those efforts sufficient to interrupt
the adverse possession claim, since there was no effort made to
physically remove the occupier from the land.

From Maryland:
"The running of the statutory period may be interrupted by the owner's
entry on the land. This entry must be made with a clearly demonstrated
intention to repossess the land. Reentry onto the land must be made
openly and under claim of right. 4 Tiffany, The Law of Real Property 
1161 (3d ed. Callaghan & Co. 1975) cited in Rosencrantz v. Shields, 28
Md.App. 379, 388-389, 346 A.2d 237 (1975). "[A]ll authorities agree
that entry to have such effect [of interrupting adverse possession]
must be an actual entry upon some part of the land within the period
of limitations, and must evince that it is made with the clear and
unequivocal intent to invade and challenge the right of the holder of
the adverse possession and to retake possession." Rosencrantz, supra
at 388-389, 346 A.2d 237 quoting Wickes v. Wickes, 98 Md. 307, 328, 56
A. 1017 (1904).
Entry sufficient to interrupt an adverse possession need not be
accomplished by the owner. A record owner's agent or licensee may also
interrupt the running of the statute. An agent's entry must be
characterized by a proper assertion of claim to the land. 5 Thompson,
Commentaries on the Modern Law of Real Property  2552 at 576-78
(Grimes repl.1957) quoted in Rosencrantz, supra 28 Md.App. at 391, 346
A.2d 237. Whether a surveyor's presence on land will interrupt the
continuity of adverse possession sufficiently to toll the running of
limitations "must necessarily be decided in each case according to the
circumstances." Rosencrantz, supra at 391, 346 A.2d 237.
We agree with the reasoning of the Kentucky Supreme court which held
that an entry for the purpose of a survey without a claim to the land
is insufficient to oust an adverse possessor."
http://www.bowie-jensen.com/rc/foley-micelli.html

That does raise a question, though -- was the hostile use of the
property sufficiently "open and notorious" so that a reasonably
diligent owner would have seen and noticed it?  If so, then the
statute of limitations (30 years) started to run when the "open and
notorious" hostile use began.

See http://lis.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=129961&Depth=2&advquery=%222A%3a14-30%22&depth=4&expandheadings=on&headingswithhits=on&hitsperheading=on&infobase=statutes.nfo&rank=%20%20&record={28C}&softpage=Doc_Frame_PG42&wordsaroundhits=10&zz=
for the relevant statute.

The second question -- does your claim extend across the whole parcel
-- can only be answered on a case-by-case basis.  It will depend
entirely on the evidence presented about the nature of the property,
the nature of your use, and so on.  The existence of the fence, one
way or the other, isn't a deciding factor.  The deciding factor is
USE.  Did you USE the entire property, openly, notoriously, under a
claim of right, for the entire 30-year period?  If so, it should be
yours.
See http://www.bowie-jensen.com/rc/foley-micelli.html, the Maryland
case above.  It has similar facts, involving a fence running parallel
to the property line, and use of the entire disputed parcel -- not
just the area up to the fence.  It is the use of the land, not the
existence of the fence, that matters.

Finally, your clarification raised the issue of the owner's delay in
going to court.  The usual term for that kind of delay is "laches." 
The concept of a statute of limitations, and "laches," are related but
different.  The statute of limitations (and remember, adverse
possession is created by a statute of limitations) is a hard, bright
line.  Beyond the time period, and you're completely out of luck no
matter how sympathetic your story might be.  Laches, on the other
hand, is an equitable concept that seeks to balance the unfairness of
unreasonable delay in seeking relief against the unfairness of having
a deserving plaintiff lose his day in court.  So there isn't a bright
line.  There is no defined time period, as there is with a statute of
limitations.  Instead, it's a fuzzy concept of fairness that is up to
the individual judge to determine.

Here's a New Jersey case applying the concept of "laches" to an
employment discrimination case:
Mancini v. Township of Teaneck (New Jersey 04/28/2004)
http://www.judiciary.state.nj.us/opinions/supreme/a-18-03.pdf
The New Jersey Supreme Court affirmed the New Jersey Appellate
Division that the employer abandoned its defense of laches by not
diligently pursuing the defense in a continuing violation claim of
sexual harassment. For guidance in future cases, when evaluating a
laches defense, the court would consider three factors as being
especially relevant: (1) whether an alleged act was unreasonably
distant in time, (2) whether an employee knew or should have known of
a valid claim based on that act, and (3) whether the employee's delay
in filing a claim caused undue prejudice to an employer. The court
noted that no one factor controlled the analysis.

Laches may apply when one unreasonably delays in seeking relief, and
the unreasonable delay causes undue prejudice to the defendant.  In
your case, however, I see the statute of limitations being a MUCH,
MUCH stronger claim for you than the owner's five-year delay after
your conversation.

I hope you found this helpful.  Please let me know if I can provide
any further assistance, and best of luck with the case.
ennyl-ga rated this answer:5 out of 5 stars and gave an additional tip of: $50.00
Thank you so much! I have just forwarded your research to my attorney.

Comments  
Subject: Re: Adverse possession of land in New Jersey
From: pafalafa-ga on 17 Jun 2005 15:54 PDT
 
Just a note to hagan-ga...

Wanted to say "hello"...haven't seen you around here before.  Looks
like you're off to a great start.

You seem to have a nice touch on the legal questions, so you may want
to look into these two:

http://answers.google.com/answers/threadview?id=532290

http://answers.google.com/answers/threadview?id=531128

which I haven't been able to make much headway on.

Welcome aboard,

paf
Subject: Re: Adverse possession of land in New Jersey
From: ennyl-ga on 17 Jun 2005 16:44 PDT
 
You just sent someone's google question to me by accident. ennyl
Subject: Re: Adverse possession of land in New Jersey
From: hagan-ga on 20 Jun 2005 07:33 PDT
 
Why, thank you!

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