Adverse possession is the process by which a person can acquire title to a piece of real estate by occupying it. The property must be occupied for a certain period of time, which differs depending upon the state. In New Jersey, the time period and other required elements of adverse possession are set forth in Section 2A:14-31 of the New Jersey Code. If the adverse possessor prevails in his claim, the original property owner is not compensated for the loss.
Period of Possession
If a person owning a house or vacant land installs a fence, builds a driveway or places a structure beyond the boundary line of his property -- on property owned by someone else -- he may obtain title after maintaining possession for a long period of time. Under Section 2A:14-31, if the property is an undeveloped woodland area, the adverse possession period is 60 years. All other property has an occupation period of 30 years.
Because of the very long period of time required to claim adverse possession in New Jersey, an adverse possessor can establish that the statutory period is satisfied by tacking. Tacking means that the person claiming ownership by adverse possession can use past deeds or public records to establish that the 30- or 60-year period of possession began with a prior owner.
For example, if a person built a fence two feet past his property line and remained there for 12 years before selling, and the new owner kept the fence up, the new owner could petition for title by adverse possession after 18 years. This is because the occupation began 30 years prior when the fence was built during the original owner's possession.
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An adverse possessor must establish the elements of adverse possession in order to acquire title in New Jersey. Elements include continuous, hostile, open and notorious, exclusive and actual possession. "Continuous" means that the possession must be constant and regular; sporadic use of the land is not sufficient to establish adverse possession. "Hostile" means that the adverse possessor uses the property knowing that she is not the rightful owner of the property. An adverse possessor can establish "open and notorious" possession by using land in a way that everyone -- including the actual owner -- can see, such as maintaining the lawn or placing a shed or other type of structure on the land. The "exclusive" ownership element requires the adverse possessor to be the sole possessor of the property. This means that even the actual owner does not use the land. Lastly, "actual possession" means that the adverse possessor must make use of the land -- e.g., for crop harvesting -- rather than simply claiming it.
The one exception to the right to title by adverse possession in New Jersey is when the federal or state government owns the property at issue. Property that has a public use, such as a school and its surrounding land or a highway, is protected from any adverse possession claims. Additionally, federally- or state-owned woodlands, even if undeveloped and unused, are also not subject to taking by an adverse possessor.