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County of Bergen v. Cooper-Shepard

A-5905-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ADVERSE POSSESSION; PUBLIC ENTITIES — Where an adverse possession claim is one that can be brought against a governmental entity, the statute of limitations cannot begin earlier than July 10, 1991.

In 1953, a county purchased substantial land for use as a public park. The prior property owner’s abutting lot encroached on that land “to the extent of some 1220 square feet.” It was agreed that since 1959 the encroaching area contained “a cabana, a shed, a fence, and paving,” all property of the private property owner. The current owners of the abutting property took title by way of an inheritance from their parents in 2000. Their parents had purchased the land in 1972 from an unrelated party and the unrelated party had owned the property since 1955. The county sued to remove the encroachment and the private property owner asserted that they were entitled to the land by the doctrine of adverse possession.

Prior to 1991, “lands owned by a public entity were not subject to adverse possession claims.” In 1991, the New Jersey Supreme Court “modified that rule, allowing adverse possession claims if the land was not used for a public purpose. ... But the [New Jersey Supreme Court] also ruled that the decision would have not retroactive effect. ... Thus, for property owned by a governmental entity but not dedicated to public use, the statute of limitations [begins to run] from the date” of the decision, which was July 10, 1991. The private property owners argued that the county, to remove them from the park land, was obligated to bring this action within twenty years from the date of accrual. The Court agreed, but since “the date of accrual could not be earlier than July 10, 1991, when the [deciding] case was decided,” the Court ruled that the county’s action was timely. Given that the lower court had found the land to be dedicated to public use, the private property owners had no right to retain it under the doctrine of adverse possession, and since the county’s suit was timely, the Court agreed with the lower court that the private property owners needed to remove their encroaching improvements.


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