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Simmons v. Township of Maplewood

A-3141-05T5 and A-3309-05T5 (N.J. Super. App. Div. 2007) (Unpublished)

ADVERSE POSSESSION; GOVERNMENTAL ENTITIES; TACKING — Although the principle of adverse possession not running against government entities has been modified with respect to property used for other than a public use, the long held legal principle that stops tacking when the government transfers a property to a private owner still applies.

In 1922, a property was divided into three lots. Two were sold, developed, and continuously occupied. Twenty-two years later, the third lot, the one between the two developed lots, was acquired by the municipality by way of a tax sale foreclosure. For the following sixty years, the municipality neither improved the property nor put it to any public use. The lot was then sold. The owner of one of the two developed lots brought an adverse possession claim against the buyer. That owner had recently purchased his home and sought to gain title to, and maintain use of, bordering areas of the undeveloped lot that had been paved, fenced in, and used by his predecessors in title. A claim for adverse possession and for a declaration of title was brought by the owner of the other developed lot for a different portion of the undeveloped lot that bordered his property and had been cultivated. Both owners acknowledged that their respective property surveys did not include those portions of the undeveloped lot and that neither had paid property taxes on the lot. The municipality purchased the lot back from its buyer and replaced it as a party to the actions. A motion by the first owner to gain an easement for use of the paved area for parking was denied by the lower court which later dismissed both actions.

On appeal, both owners argued that they had satisfied the thirty-year requirement of continuous and obvious use of the disputed areas to satisfy the statutory requirements for adverse possession. They both claimed that the thirty-year requirement had been satisfied through tacking on the time period that their predecessors in title occupied and maintained the disputed areas. The Court noted the long held legal principle that adverse possession does not run against government entities, but also noted that the principle had been modified to only apply to land that was used or designated for public use. It found, however, that the owners could not tack on for the time prior to the new buyer’s ownership of the disputed lot because of a long held legal principle that stops the tacking when the government transfers a property to a private owner. The Court also noted that tacking would otherwise not have begun until the decision allowing adverse possession of government property was made, and that the ruling was prospective and occurred less than thirty years prior to the action brought by the owners.

The Court also held that a lis pendens filed by the first owner did not create a right to adverse possession, and that a lis pendens only gives constructive notice that the status of a property is in legal dispute and preserves the property’s status pending resolution. It further held that the first owner’s claim for a prescriptive easement over the paved area on the undeveloped lot failed because the standards for obtaining land through a prescriptive easement were the same as they were for an adverse possession, and that was not satisfied.


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