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Rhoda Realty Company v. ARC Family, LLC

A-1550-03T5 (N.J. Super. App. Div. 2004) (Unpublished)

EASEMENTS; ADVERSE POSSESSION; EXCLUSIVE USE—The incidental use of an easement by the public does not defeat a claim of exclusivity by a party claiming rights by adverse possession.

There were two contiguous properties. One was a strip shopping center with five retail stores. The other was a commercial building with offices and retail stores. The shopping center had been acquired by its owner in 1970. The commercial building was acquired by its owner in 1999. At the rear of the shopping center was a sidewalk leading to concrete steps that extended to the neighboring commercial property. In 1990, the predecessor of the current commercial property owner put up a wooden fence along the boundary of the properties. The fence had an opening permitting access from the shopping center onto and across the commercial property’s parking lot. It was undisputed that for more than thirty years, the shopping center’s tenants and customers used that passageway to proceed across the adjacent owner’s parking lot to get to a sidewalk along a major thoroughfare. Because the shopping center’s store extend the full width of the property’s boundary line, the shopping center always depended on the route across the commercial building’s parking lot to provide direct access to the major thoroughfare.

In 2001, the owner of the commercial property erected a chain link fence blocking the previous opening and a law suit followed. In that law suit, the shopping center owner testified that the passageway had been “exclusively” utilized by itself, its customers, and employees of its retail store. In fact, it had posted signs at various points along its own rear parking lot advising the public that the lot was “private property” and that parking was restricted to “customers only.” The lower court concluded that the shopping center owner had “met its burden of establishing all of the legal requirements for a prescriptive easement.” According to the Appellate Division, “[a] party claiming the creation of an easement by prescription must prove, by clear and convincing evidence, that possession was adverse or hostile, exclusive, continuous, uninterrupted, visible and notorious for a period of twenty years.” Accordingly, the only issue in dispute was “the exclusive use of the passageway.” The owner of the commercial property contended that the area in question was “indiscriminately used by the general public.” The lower court had rejected that assertion noting that under prior case law, “the incidental use by members of the public [of an easement] did not defeat [the shopping owner’s] proprietary claims.” The Appellate Division agreed.


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