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. |
