Legal Question in Real Estate Law in New Jersey

Re: adverse possession

I handle a large number of adverse possession actions, and can tell you that they vary. It really depends on the entire situation. If the plaintiff is claiming adverse possession on a portion of a property, because it falls within a fence line, the question is whether their possession was open, notorious, hostile and continuous. They probably don't need payment of taxes, although that helps. If it is an entire parcel, and they have not paid taxes over the entire period, that would hurt their claim. In the city of Philadelphia, for example, payment of taxes on a lot or parcel for the full 20 years almost always equals success.

You may want to consult an attorney. Please do not hesistate to contact me with follow up questions. An initial consultation would be free of charge.

Re: adverse possession

Adverse possession is a doctrine inherited from English common law. The concept is not older than taxes, but it is older than the tax statutes. To acquire title to property by adverse possession, the possession must be open, notorious, adverse, and essentially continuous through the required period. �Open� means that the claim of possession is not concealed. �Notorious� means that one who cared to look would have notice of the possession. �Adverse� carries with it the intention to exclude the title owner from possession or use of the property. The required period is twenty-one years or close to that; it depends on the jurisdiction.

The payment of taxes is evidentiary, but not determinative. If the party seeking to establish title by adverse possession has paid the taxes on a large parcel over the period, this is very persuasive. On the other hand, if the issue is over a small strip near a property line, the fact that the non-possessory party has paid taxes over the years is less influential.

It helps to consider the purpose of the doctrine of adverse possession (because a court will). It is not to legitimize theft of land. It is rather intended to quiet title to questionable claims. That was especially important at a time when surveying was less precise than it is now. Essentially, if Adam holds a strip of Baker�s land openly and with notice and Baker does nothing to show that he disapproves, then it can�t be that important to Baker and the law will resolve any subsequent dispute in Adam�s favor.

That all leads to an interesting countermeasure against losing land to adverse possession. Let�s say that your neighbor erects a fence six inches into your property by mistake. You sort of like having the fence there and you don�t want to cause your neighbor to go through the expense of moving the fence. You can avoid losing the land by adverse possession simply by giving your neighbor permission to keep the fence where it is (on the condition that it is insured and maintained). This defeats the requirement that the possession be adverse because you have exercised your right to the land by giving your neighbor permission to use it. If you try that, do it in writing, save a copy of your letter, and remember to do it again in the event that someone else buys from your neighbor.