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Gewertz v. Estate of Rutecki

A-4172-03T1 (N.J. Super. App. Div. 2005) (Unpublished)

ADVERSE POSSESSION; PRESCRIPTIVE EASEMENTS — In order to establish the right to land by adverse possession or a prescriptive easement, a claimant must show by a preponderance of the evidence that possession of the land was actual and exclusive, open and notorious, continued and uninterrupted, and adverse and hostile for at least 30 years.

A man owned a property for twelve years. Prior to owning the property, he leased it from the prior owner for nine years. Adjacent to the property was land that contained a dirt driveway. It ran from a public street to the man’s property. For many years, the man often used the driveway to access his property. The adjacent land was sold. After its owner’s death, a church sought to purchase the property from the estate to build a school. The man filed a quiet title action asserting that he had ownership rights in the driveway on the estate’s property through adverse possession. The church moved for summary judgment, which the lower court granted. The man appealed. On appeal, the man contended that the lower court erred in not concluding that he had obtained title to the driveway by adverse possession.

The Appellate Division affirmed the lower court’s ruling. In reaching its conclusion, it discussed the methods by which the man could have obtained title to the driveway. The man could have obtained title by adverse possession or by way of a prescriptive easement. In order to establish the right to land by adverse possession or by way of a prescriptive easement, a claimant must show by a preponderance of the evidence that possession of the land was: 1) actual and exclusive; 2) open and notorious; 3) continued and uninterrupted; and 4) adverse and hostile. Possession of the land must be for the full thirty year statutory period. The Court found that despite the fact that the man could establish some of the factors regarding the use of the driveway, the man could not meet the thirty-year statutory requirement. The evidence presented by the man showed that the driveway had been used by both him and his predecessors-in-title for only twenty-three years. As a result, the Court upheld the lower court’s determination.


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