If you’re a property owner in New Jersey, you likely have two or three neighbors whose land borders yours. While it may seem surprising, those neighbors might be able to gain legal title to pieces of your property under a legal concept called adverse possession. And while less likely, an unknown trespasser can also squat on your land and develop the same type of claim to legal ownership.
To make sure that your land remains yours and that a neighbor can’t lay claim a portion of it, you should familiarize yourself with the New Jersey’s laws on adverse possession. There may also be times when you yourself need to assert an adverse possession claim, over land that you feel you’ve developed a right to use and want to continue using.
Adverse possession is a legal concept that allows a trespasser – sometimes a stranger but more often a neighbor – to gain legal title over the land of a property owner. The concept developed in early Britain. More recently, the law’s function has become to achieve a fair result when one owner has neglected or forgotten about a piece of his or her land while another has been using or caring for it for so long that to make him or her leave would create hardship.
Adverse possession in New Jersey is regulated by statute, but also by the state's courts. Importantly, the burden of proof to establish a claim of adverse possession is on the trespasser. The legal holder of title has the presumption of ownership until the adverse possessor can meet that burden. In other words, it is the trespasser’s job to muster all the evidence and legal arguments that will prove that the judge should grant him or her ownership of the land.
Like in most states, adverse possession in New Jersey is established from the nature of a trespasser’s possession and the length of time he or she possesses the land. A trespasser’s possession must be:
1) hostile (against the right of the true owner and without permission)
2) actual (exercising control over the property)
3) exclusive (in the possession of the trespasser alone)
4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and
5) continuous for the statutory period (which is 20 years in New Jersey for most types of property under N.J. Stat. Ann. § 2A:14-6, but 30 years for “uncultivated lands,” such as a woods, under N.J. Stat. Ann. § 2A:14-30).
For example, imagine that Brian and Jane live next to one another in Princeton. There is no dividing fence or boundary between their yards. Brian builds a shed that is actually on Jane’s side of the property, covering about 15 square feet of earth. Jane doesn’t say anything. Brian uses the shed as if it were on his own land. He does this for twenty years. Under the rubric described above, Brian can probably establish that he “owns” the land on which he was encroaching. Jane could have stopped Brian by demanding over those 20 years that he remove his shed, or sign a rental agreement. But New Jersey courts will not allow her to suddenly eject Brian after sitting on her rights for two decades.
Importantly, New Jersey courts emphasize that there is no requirement that the entry and continued possession of the property be done with knowing or intentional hostility. Rather, any entry and possession for the required 20 years that is exclusive, continuous, hostile, actual, and open – even if under a mistaken claim of title – is sufficient to support a claim of title by adverse possession. In our example above, it doesn’t matter whether Brian built the shed knowing that he was on Jane’s land, or whether he built it mistakenly thinking it was on his own land. His intent has no bearing on his eventual claim for title under adverse possession.
In New Jersey, a trespasser can also gain adverse possession over someone’s property under “color of title.” Color of title means that there is a legally filed document that gives the appearance of actual legal title, but that this document is not legally valid.
Imagine that the deed to your property indicated that you owned a particular lake, but that your deed, for whatever reason, is incorrect; that lake actually belongs to your neighbor. If such a faulty document is recorded in the county register’s office for a full 30 years or more without objection, then it becomes valid. (See N.J. Stat. Ann. § 2A:14-31).
If you are a property owner, and are concerned about a trespasser or neighbor who seems to be developing a claim for adverse possession, you can file a lawsuit to “quiet title.” This is essentially a legal declaration from a court that you, in fact, own the property. Such a declaration might be particularly important if you are considering selling your property and want to be able to assure a potential buyer about the scope of your boundaries.
In New Jersey, it’s important to remember that state courts are divided into “Law Division” and “Chancery Division.” This is a distinction somewhat unique to the state. While the Law Division courts handle cases for money damages, you would need to file your lawsuit in the Chancery courts, which handle cases for property ownership and issues of title.