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Freehold Jackson 537 Associates v. Olson

A-0124-03T1 (N.J. Super. App. Div. 2005) (Unpublished)

ADVERSE POSSESSION — To succeed on an adverse possession claim, the claimant or its predecessor must have used the land for the same use, not different uses for thirty consecutive years and such use must be open and notorious such that the true landowner would know of the use.

A woman owned property adjacent to a small piece of land. She mistakenly believed that the adjacent land was part of her property and used the land for farming purposes for over thirty years until she transferred title to the property to her granddaughter and her husband. The granddaughter also believed that the adjacent land was part of the property, and therefore continued her grandmother’s farming activities. She planted blueberries on the land for another twenty years until she sold the property to a man. The man was also under the impression that the farm land was part of the property and he too farmed blueberries on the land for the next twelve years. He then sold the property to a married couple. The couple did not order a survey prior to purchasing the property, and therefore they believed that the adjacent land was part of the property. However, didn’t conduct any activities on the land. The land was sold to a series of buyers. None of them farmed the land. Then, the last buyer in the series applied for, and received, a variance to build on the property. The variance eventually was voided due to his failure to comply with its conditions. He then lost title to the main lots, all of which were actually in his chain of title through a tax foreclosure sale. At the time of the tax sale, the man became aware that the adjacent, small piece of land was not part of the deeded property. He then constructed a residence and various buildings to store animals on that land. He did not get building permits and didn’t pay its property taxes. The record owner of the land eventually discovered the man’s improper use of the land. It filed an action seeking possession of the land, mesne profits, and other damages. The man who had constructed the buildings filed a counterclaim requesting a declaration of title based on adverse possession. The lower court rejected the man’s counterclaim and granted the company possession of the land to the record owner. The man appealed, contending, among other things, that the lower court erred in rejecting his adverse possession claim because he presented evidence that his predecessors-in-title adversely possessed the land for a period far exceeding the thirty year requirement.

The Appellate Division affirmed the lower court’s ruling, holding that the man had the burden of proving all of the requirements of an adverse possession claim. It ruled that the man failed to establish two of them. The first was continuous use of the land for the thirty year statutory period. According to the Court, the man failed to establish that the land had been used as a residence and horse farm for thirty consecutive years. It held that his predecessors-in-title’s use of the land could not use to establish the thirty-year period because their use of the land for farming was different than his use of the land for a residence. It further found that the man failed to establish the that his use of the land was “visible and notorious” as required. In order to meet this requirement, a person must put the actual owner on notice that the land is actively being trespassed on. The Court found that the man intentionally kept the use of the land private and that he was fully aware that no one could see the use of the land through the surrounding forest.


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