Kluin v. Horincewich

A-0038-96T2 (N.J. Super. App. Div. 1997) (Unpublished)
  • Opinion Date: November 24, 1997

ADVERSE POSSESSION—In an adverse possession action, the burden of proof is on the one that does not own title; there is no presumption that the record owner is aware of the exclusive, continuous, uninterrupted, visible, and notorious use of the land by another.

After purchasing a “flag” lot, the new owner observed that various neighbors had improvements, such as a pool, fence, a playground, and garden sheds that crossed their lines into the lot. The owner sought an order restraining the various neighboring owners from further encroachments, and sought a declaration that he had good and valuable title to the lot. The neighbors countered that they had title to the lot through adverse possession since their use of the lot had been adverse, hostile, exclusive, and uninterrupted for over 30 years. Despite much testimony from abutting landowners about the quality and duration of the encroachments, the trial judge concluded that the lot was “woodlands”, and therefore the 60 year adverse possession period applied. The judge also held that the various defendants failed to meet their burden of proof for an adverse possession claim.

The Appellate Division stated the statutory requirements for an adverse possession claim. Although the duration varies depending on the type of land, a claim of adverse possession requires exclusive, continuous, uninterrupted, visible, and notorious use of land by one who does not own title. The burden of proof is on the party claiming title through adverse possession. If the encroachment is only on a small part of the lot and the intrusion is not clear to the naked eye, there is no presumption of knowledge on the part of the true owner. In this case, the ultimate question was whether an ordinarily prudent title owner would be put on notice that the land was in actual possession by another, given the location of the sheds and fencing, and the use of the lot. Under the facts, the Appellate Court upheld the trial court’s finding that: (1) the sheds encroached only a few feet onto the lot and were transient, since no foundations had been constructed; (2) any use of the lot as a playground was sporadic; and (3) there was no clear evidence as to when the fencing was installed on the lot. Accordingly, the Court concluded that none of the neighboring landowners had an interest in the lot by virtue of adverse possession.