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Perahia v. Fenner

A-6832-02T5 (N.J. Super. App. Div. 2005) (Unpublished)

BOUNDARIES — If the evidence warrants, a court may find that there had been an agreement between neighboring property owners to establish an agreed-upon boundary between the properties and such an agreement may be binding on successor property owners.

In a boundary dispute involving neighboring property owners, the lower court ruled that one of the owners was entitled to a small portion of its neighbor’s property based on adverse possession and on the doctrine of agreed boundaries. When the properties were created as part of a subdivision, the boundary line between the two properties was angled. The owners at the time agreed to have a straight line divide the properties so that there would be comparatively similar areas between the houses and the property line. In order to accomplish this goal, one of the owners planted shrubbery and hemlocks to establish the new property line. The hemlocks and shrubbery were owned and maintained by the owner who encroached onto the other property. Eventually, this landscaping was replaced by a hedge planter placed in the same location. One of the neighbors moved and the new owner disputed the other owners’ right to maintain the hedge planter on her property. At trial, the encroaching owner testified as to the agreement between her and the original owner of the other property to allow the hemlocks and shrubbery in order to create a straight boundary line. The encroaching owner’s landscaper, who worked thirty-five years for that owner, also testified to the arrangement. In addition, the daughter of the original owner of the other property testified as the arrangement and confirmed that when she lived in the house with her parents and later when she briefly owned the house, the shrubs and hemlocks were always maintained by the other owner and never at her or her parents’ direction. The Appellate Division affirmed, holding that the testimony of the encroaching owner, the landscaper, and the prior owner’s daughter demonstrated that the owners’ conduct showed that they had an agreement that the property line would be a straight line, and that the property line was established by the planting of the shrubbery and hemlock. The Court noted that the shrubbery, which was eventually replaced by the hedger planter, were planted and maintained by the encroaching owner. It found that the encroaching owner established ownership of that portion of the neighbor’s property by adverse possession since it has actual, exclusive, visible, and continuous possession of that portion of property. The Court also agreed with the lower court’s determination that the original owners had agreed that plants would establish the property line between the two properties.


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