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  1. #11
    Join Date
    Jul 2015
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    7

    Default Re: Neighbor Claiming Adverse Possession on Her Side of My Fence

    Quote Quoting Catmad
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    "We just purchased a house and would like to replace the existing chain link fence with a new fence and put the new fence just inside the correct boundary line as per our survey. We had a survey done which shows our current fence is around 3.5 feet inside our property line."

    Is your new survey marked as a "boundary survey"?
    Yes.

  2. #12
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    Nov 2013
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    Default Re: Neighbor Claiming Adverse Possession on Her Side of My Fence

    Quote Quoting budwad
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    It's the 4th of July and I have a BBQ to get to so no time to be researching NJ cases. But the other possibility or problem is going to be a claim for boundary by acquiescence or by agreement depending on what the previous owners of both properties did or did not do. The statutory period is the same as AP but the claim is easier than adverse possession.

    If one of the other members doesn't post on this, I will work on it tomorrow.

    Happy 4th.
    I can't find any cases that would deal with boundary by acquiescence or by agreement in NJ cases. The cases all seem to morph into adverse possession. But since the fence was placed inside your boundary line by a predecessor and that the fence and boundary are clearly shown on your survey and that the neighbor's use of the property was only casual (as defined in the NJ cases)., I don't think you have any real problems with doing whatever you want.

    Of course, a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required period of years. Brown Paper Mill Co., Inc. v. Warnix, 222 Ark. 417, 259 S.W.2d 495 (1953),

  3. #13
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    Sep 2005
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    Default Re: Neighbor Claiming Adverse Possession on Her Side of My Fence

    For clarity, the quote (and citation) you present is from an Arkansas case, with the New Jersey court applying similar reasoning to the case it was analyzing. Maggio v. Pruzansky, 222 N.J.Super. 567, 537 A.2d 756 ([App.Div.] 1988). Maggio references another helpful case,
    Quote Quoting Mannillo v. Gorski, 54 N.J. 378 (1969), emphasis added
    The precise location of the dividing line is then ordinarily unknown to either adjacent owner and there is nothing on the land itself to show by visual observation that a hedge, fence, wall or other structure encroaches on the neighboring land to a minor extent. Therefore, to permit a presumption of notice to arise in the case of minor border encroachments not exceeding several feet would fly in the face of reality and require the true owner to be on constant alert for possible small encroachments. The only method of certain determination would be by obtaining a survey each time the adjacent owner undertook any improvement at or near the boundary, and this would place an undue and inequitable burden upon the true owner. Accordingly we hereby hold that no presumption of knowledge arises from a minor encroachment along a common boundary. In such a case, only where the true owner has actual knowledge thereof may it be said that the possession is open and notorious.
    The reason for a lack of distinction between adverse possession and acquiescence in New Jersey appears to be that acquiescence has been incorporated as an element of adverse possession.
    Quote Quoting Patton v. North Jersey Dist. Water Supply Comm'n, 93 N.J. 180, 186, 459 A.2d 1177 (1983), emphasis added.
    The burden of proof rests on the party claiming title by adverse possession. After a party introduces evidence of an open, continuous, uninterrupted exclusive use for the prescriptive period with the acquiescence of the owner, a presumption arises that the use was adverse except when the land is vacant, unimproved, unenclosed, and the use is casual rather than customary.

  4. #14
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    Nov 2013
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    Default Re: Neighbor Claiming Adverse Possession on Her Side of My Fence

    Thanks for the clarification. One thing I did notice reading the NJ cases is that for adverse possession the element of hostile has been removed.

  5. #15
    Join Date
    Jul 2015
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    7

    Default Re: Neighbor Claiming Adverse Possession on Her Side of My Fence

    Thank you for all the helpful replies and research on similar past cases. I hope she's just making empty, misinformed threats to intimidate us and will resolve this matter with us without taking us to court! But if she does, we are much more informed and prepared thanks to all your help. All we want to do is improve our property with a nice, new fence, and establish the fence on the correct line (which will allow us to get rid of the overgrown shrubs and dead tree on our property, but her side of the fence.) Eager to see what our lawyer says, happy to keep the group posted on how this turns out.
    Quote Quoting budwad
    View Post
    I can't find any cases that would deal with boundary by acquiescence or by agreement in NJ cases. The cases all seem to morph into adverse possession. But since the fence was placed inside your boundary line by a predecessor and that the fence and boundary are clearly shown on your survey and that the neighbor's use of the property was only casual (as defined in the NJ cases)., I don't think you have any real problems with doing whatever you want..

    .Of course, a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required period of years. Brown Paper Mill Co., Inc. v. Warnix, 222 Ark. 417, 259 S.W.2d 495 (1953),
    What constitutes casual use of property, and what constitutes the neighbor "taking possession of the strip"?

    Our neighbor has planted a few flowers along the strip, but it largely consists of overgrown shrubs and one dead tree that her husband admitted was dead but said his wife refuses to take it down.

  6. #16
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    Nov 2013
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    Default Re: Neighbor Claiming Adverse Possession on Her Side of My Fence

    The person claiming adverse possession (your neighbor) did nothing to place you or your predecessors on notice that they were taking dominion over the land.
    The foundation of so-called title by adverse possession is the failure of the true owner to commence an action for the recovery of land within the period designated by the statute.   However, no presumption of knowledge arises from a minor encroachment.   That is, the true owner is not charged with knowledge of an encroachment unless or until it takes on characteristics of acts of dominion over the land.  [“]That failure [to take action] is relevant only if the owner has had notice, actual or constructive, that another considers himself to be, or is using the property as, the owner.   Therefore, one criterion of adverse possession is that the use must be so open and notorious that an ordinarily prudent person would be put on notice that the land is in actual possession of another.[”]  Patton v. North Jersey Dist. Water, supra [, 93 N.J. at 186, 459 A.2d 1177].Stump v. Whibco, 715 A. 2d 1006 - NJ: Appellate Div. 1998

  7. #17
    Join Date
    Jul 2015
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    7

    Default Re: Neighbor Claiming Adverse Possession on Her Side of My Fence

    to close the loop...our lawyer said she has no legal claim, the area in question has not been improved enough to warrant adverse possession since it's just wild shrubs and a few plants, and her burden of proof would be so high she would almost certainly lose, and that any good lawyer would tell her that even if she wanted to try. so his advice was that he would write her a letter on our behalf simply stating his clients had read her letter and that her claims have no legal basis. then he said we should go ahead and build our fence, but to take pictures first so just in case she sues us, we have evidence of what the property looked like before, which should be enough to protect us from a lawsuit.

  8. #18
    Join Date
    Nov 2013
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    672

    Default Re: Neighbor Claiming Adverse Possession on Her Side of My Fence

    Good news. I hope it all works out well, and thank you for closing this off. I always wonder how things end...

  9. #19
    Join Date
    Jun 2015
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    988

    Default Re: Neighbor Claiming Adverse Possession on Her Side of My Fence

    PS I would be keen to place my fence on the correct property line and not some 3 ' inside my line Or at the very least make clear use of my lands on other side of my fence .

    You didn't answer when she bought her property ...It might matter ...and go read both deeds .
    Somewhere in back of my mind, NJ allows for tacking but requires it be done inside of 1 year of transfer ...or so it was when I bought lands in NJ and covered the point.

  10. #20
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    Nov 2013
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    Default Re: Neighbor Claiming Adverse Possession on Her Side of My Fence

    Quote Quoting HRinDEVON
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    You didn't answer when she bought her property ...It might matter ...and go read both deeds .
    Somewhere in back of my mind, NJ allows for tacking but requires it be done inside of 1 year of transfer ...or so it was when I bought lands in NJ and covered the point.
    This makes no sense, transfer of what? There is no statute in NJ that I can find to address this. And besides, tacking is a common law doctrine.

    Perhaps you would care to explain this. Posts like this really are not all that helpful unless you back it up with a case or a statute.

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