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Sisca v. Binder

A-0712-09T3 (N.J. Super. App. Div. 2010) (Unpublished)

ADVERSE POSSESSION — A minor encroachment, not visible to the naked eye, but only discoverable through a formal survey, is insufficient to support a claim for adverse possession because it cannot be presumed that the true owner was aware of the encroachment.

Since 1994, residential property was owned adjacent to another owner’s residential lot. The neighboring owner acquired its property in 1960. At the time of the purchase in 1994, a survey showed no encroachments. Nonetheless, in 1969, the 1960 owner installed a chain link fence separating his property from the adjacent property. The company that installed the fence followed stake markings that the builder had used to mark the property border. After the 1994 owner moved in, he installed a wooden fence parallel to the chain link fence.

In 2008, the 1994 owner sent a certified letter to its neighbor with a recent boundary survey showing that both fences were actually situated on the 1994 owner’s side of the boundary. The encroachment was a long, narrow triangle, about two feet wide, and running seventy-five feet along the ninety-two foot border. The 1960 owner responded by contending that the boundary has been altered by adverse possession because he had installed the chain link fence in 1969.

The 1994 owner sued for removal of the chain link fence and enforcement of his property rights. In response, the 1960 owner sought quiet title by adverse possession. The lower court granted summary judgment in favor of the 1994 owner, concluding that his neighbor had failed to demonstrate that he, 1994 owner, had actual knowledge of the minor encroachment prior to having the new survey completed in 2008. It ordered removal of the chain link fence, holding that no presumption of knowledge arises from a minor encroachment along a common boundary and finding that removal of the fence would not impose any significant burden on the 1960 owner.

On appeal, the 1960 owner argued that the lower court misapplied the law of adverse possession. As recognized by the Supreme Court in Manillo v. Gorski, the Appellate Division pointed out that an entry onto, and subsequent possession of, land for the required time, which is exclusive, continuous, uninterrupted, visible, and notorious, even though under mistaken claim of title, is sufficient to support a claim for adverse possession. The Court reasoned that although fencing of land is usually indicative of an assertion of ownership, a minor encroachment, i.e., an intrusion so small that it cannot easily be detected without a survey, is insufficient to support a claim of adverse possession. Under such circumstances, it cannot be presumed that the true owner is aware of the minor encroachment. Thus, the Court affirmed the conclusion reached by the lower court, noting that the encroachment was not detectable by the naked eye, but was only discoverable as a result of a formal survey such as the one done in 2008. It reasoned that the encroachment was not substantial and the modest encroachment was not an open and notorious taking. Therefore, it was irrelevant how long the chain link fence had been in place.

Furthermore, the Court found the 1994 owner was not aware of the encroachment when he erected his wooden fence, as the 1994 survey disclosed no encroachments. Consequently, there was no voluntary relinquishment of a known right and he was entitled to have the actual boundary enforced.


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