“…..but that has been my property for over thirty (30) years!” Does that statement sound familiar? The State of New Jersey has long recognized property rights to those who “take” control over property owned by others. This phenomenon is commonly known as claims for Adverse Possession or Prescriptive Easement. Unhappily, these situations are not all that uncommon when dealing with driveway access or building encroachments.
Driveway access cases stem around the argument that for thirty (30) plus years the claiming party has utilized the disputed property for ingress and egress. For example, in days of old, driveways were constructed with narrower access lengths. Today with increased vehicle sizes, the current driveways are constructed to some 13 plus feet in width. Thereby, the driveways of old have grown by necessity. The old saying that “fences make good neighbors”, can be a harsh reality for property owners whose property access is now reduced or eliminated by the construction of a fence along the prior utilized open lands.
Our advice is, strike first. If you believe you have the required thirty year usage of existing buildings encroaching upon a neighbor’s property or a driveway which has been extended over time, move to preserve those rights. This is accomplished by filing a Complaint in the New Jersey Chancery Division which seeks to quiet title by way of an Adverse Possession or an Easement claim. Easement rights can be found by way of Prescriptive Easements, Easements by Necessity, Implied Easements and other recognized easement rights.
The likelihood of success of an Easement case is actually greater than that of an Adverse Possession case. In Easement cases, the underlying title ownership remains with your adversary. In an Adverse Possession case, the adverse party loses their property title rights completely as a result of their failure to object to the offending party’s actions for the period of thirty years. The thirty (30) year time line is also required in Prescriptive Easement cases. This thirty (30) year requirement does not apply to actions with landlocked property. In those cases, the argument is the absolute need for access and the necessity for same is immediate. Also be aware that Adverse Possession in 99% of the time will not work against any governmental entity!
One may question, how can I establish thirty (30) years of use, if I have not owned the property that long? A legal doctrine called “tacking” can be used. In tacking, the moving party can use historic data from the prior owner to prove that the thirty (30) year property possession has been actual, exclusive, adverse, visible, notorious and continual through the property’s prior owner’s dominion and control. Beware, however, because an educated property owner can seek to defeat one’s quest for Adverse Possession or Prescriptive Easements by granting “permission” to use the disputed property or grant some type of license which can be revoked at will.
What if you are on the other side and want to stop an Adverse Possession or Prescriptive Easement claim against your property? First, you need a copy of your deed and a valid survey. You should then immediately obtain a municipal fence permit and put up a fence before your neighbor files the aforementioned Verified Complaint to memorialize his or her thirty years of continuous property usage. Either way, “fences make good neighbors.”
In closing, this article has reviewed the basic arguments related to historic land usage and possible resulting property rights. These cases are fact specific and even an educated property owner can get caught in the maze of do’s and don’ts. Seek legal counsel before you are outwitted by your neighbor.