What happens to the encroachment of our fence now that our neighbor's are selling their home?

Full question:

Unbeknownst to us, we have encroached upon our neighbor's land when installing a fence that was necessary to meet code for a swimming pool. This took place 13 years ago. 7 years ago we shared the cost of a survey and marking of the corners between our lots. That was when we discovered this mistake. Is there such a thing as squatters rights? Or something like that. My neighbors did not care about the situation as: 1.) There is an easment between us anyway for an underground sewer from the street 2.) They have 3 acres and this is several feet 3.) The fence is protection from the deer, so landscaping exists where without the fence there would be none. It has just become an issue because they are going to sell and move. So the question really is: The fact that they did not care that we encroached and it has been left to stand for 13 years. Do we have a leg to stand on?

• Category: Real Property
• Subcategory: Adverse Possession
• Date: 04/07/2025
• State: New Jersey

Answer:

In NJ, a person must advesely possess cultivated property for 30 years to gain ownership. Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period, which varies by state, are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement.

Please see the following article for further discussion:

http://www.gibbonslaw.com/files/BershadTuvel-AdversePossession.pdf

The following are NJ statutes:

2A:14-32. Disabilities affecting right to enforce right or title
to real estate

If any person having a right or title to real estate shall, at the time
such right or title first accrued or descended, be either not of sound
mind or under the age of 21 years, or without the United States, he, and
his heirs, may, notwithstanding the fact that the periods of time
mentioned in sections 2A:14-30 and 2A:14-31 of this title have expired,
bring his or their action to enforce his or their right or title, if such
action shall be commenced within 5 years after his disability is removed
or he comes within the United States, but not thereafter.

2A:62-2. Presumption of peaceable possession

If the lands are not, by reason of their extent or because they are
wild, wood, waste, uninclosed or unimproved, in the actual peaceable
possession of the owner or person claiming ownership, the owner or person
claiming ownership in fee under a deed or other instrument, duly recorded
in this state, who has paid taxes thereon and to whom or to whose
grantors the taxes thereon have been assessed for 5 consecutive years
immediately prior to the commencement of the action authorized by
section 2A:62-1 of this title, shall, if no other person is in actual possession
thereof, be presumed to be in peaceable possession thereof, and shall
have all the rights and benefits of and be subject to all the provisions
of this article and articles 2 and 4 of this chapter.