Adverse Possession And Prescriptive Easement In New Jersey

**RGI** · 01-17-2008, 02:17 PM

Jurisdiction: New Jersey
Property: Single Family/Lakefront property

Backround Info: Purchased a house on the lake,a corner property. The driveway (since the 1940's) enters from a side-street (owned by Association; not a municipality). My plan is to knock the house down & rebuild. I've researched this & understand I lose "grandfather" rights in some areas, such as Taxes, etc. Currently, however, there is (been since '40's) a 4' high chain link fence & a 3' high brick wall built on a strip of land owned by the Association. Both fences (together) extend the full length of my property, 10' outside my boundary line were erected by previous homeowner & used since the house was built (1940's) by homeowner as back yard, side & entrance to driveway. When purchased, unfortunately I wasn't aware that the 10 ft strip of land was not our property, only when we received the survey did this come to our attention. I wrote & asked to purchase the small strip, the Association declined. They plan on building a boat rack (though they have boat yards). Once we knock the house down I don't know if we lose Grandfather rights (and/or if we have any) Adverse Possession and/or Easement by Prescription rights. We want to build a new house; keep the driveway entrance on the side street and erect a new wall and/or fence. The house will be within the footprint of the old house, and conform to zoning requirements. We want to keep the driveway entrance on the side street (as it's been since '40s) but would like to move the entrance slightly from the position it is now in which will necessitate removing a tree or two which is on the 10 ft strip of land in question owned by the Association. My fear is once we knock down the wall or fence or change the location of the garage’s entrance do we lose rights to prescriptive easement or adverse possession?

QUESTION: 1). The fence & brick wall and use of driveway having existed since property was first built upon in mid 1940's, can we take by Adverse possession and/or at a min. have the previous homeowners created an easement by prescription so that we can use the driveway entrance as it exists or as it newly proposed to be? 2). IF WE REMOVE ANY WALLS OR FENCES THAT HAVE STOOD THERE SINCE PROPERTY BUILT IN '40'S WILL WE LOSE ANY RIGHTS TO ADV. POSSESSION & PRESCRIPTIVE EASEMENT & 3). WHAT ARE OUR RIGHTS?

I fully understand any advice I receive in this forum is just general, to give me some very much needed direction! any help is much appreciated. Thank you!

**lwpat** · 01-17-2008, 05:36 PM

The only way to acquire legal title to land by adverse possession is to go to court and have a judge agree with you. That will take an attorney, $$$$, and a couple of years.

**RGI** · 01-18-2008, 05:11 PM

Thank you for taking the time to read & respond. From your (or anyones) experience, any idea what my chances are before I spend the time & money? (Again I fully understand theres no gurantee without legal counsel and appreciate any helpful info I can get from this forum).

If you (or anyone) could please tell me if I touch (remove) the exisiting fences (brick/chain link), that have been on the property owned by the local association, tho used by the homeowner since 1940's, do I lose the right to even make a claim? (for adversion possesion and/or easement by prescription). I'm trying to keep this brief and to the point, however, I can't tell you how much this means to me & the
sickly relative I'm trying to care/make a home for. Thank you.

**lwpat** · 01-19-2008, 07:18 AM

If the fence is yours, leaving it in place will strengthen any adverse posession claim you may have.

**RGI** · 01-22-2008, 07:03 AM

Thanks! Thats what I thought.. I can't shake this feeling that the Association is biding their time until we knock the house down to hit us with something! maybe to reclaim their strip of land where the fence now stands. IF they can do that ? (reclaim the strip of land where the fence has stood since the '40s?) They turned down our request to purchase the land, saying they have to consider all lake community homeowners & therefore want to erect a boat storage rack in the remaining space (outside the fence). Which I certainly understood (tho there are boat yards available). However, in terms of what they can do w/the space (land) it's very small, while for us, it'll make a big difference. We're not asking for much, it's less then 2700 sq ft living space. Naturally I don't have thousands to spend to fight this .. though I realize at some point I will have to hire an attorney. until then I really appreciate this forum & any advice you or anyone can give. Thank you.

**RGI** · 01-24-2008, 09:21 AM

Update: I found out it WOULD cost more then $7000K (as you said $$$$) though I could handle it myself (pro se) I called the court and after being switched 7 times...spoke to a law clerk. Though they (as always) seem reluctant for you to handle it w/out an attorney, & was told: "I'm a law clerk and cannot advise".. I hadn't asked for advice -- just general info on what court to go to, what the requirements are, forms needed, etc. which they are supposed TO help the public with (as I later found) Finally though, they did offer some help.. by directing me to their website though !! I read it in detail & finally found the Chancery Division # .. waiting for a return call.

We would like to try this ourselves before losing all that money (tho we fully realize we'd have better chances with representation; money is tight) Are there attorneys that offer services for a "flat fee" OR "hourly fee" for a "consultation" rather then $5000 retainer to immediately represent? Thanks again.