A1682

An Act concerning certain property rights, supplementing Title 2A of the New Jersey Statutes and repealing parts of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Except as provided in section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), if a person, for 20 years, has possessed real estate, all claims that may be made by any person for the recovery of the real estate shall be barred from any claim of right and that person shall have good title in the real estate provided that during that period the possession has been:

a. actual, open and notorious, of a kind that would notify others of the claim to the property;

b. inconsistent with ownership of the property by others; and

c. continued uninterruptedly for the requisite period by the person and the person’s predecessors by occupancy, descent, conveyance or otherwise.

2. P.L. , c. (C. ) (pending before the Legislature as this bill) shall not limit the estate, right, title or interest of, or bar any claim or action by:

a. The State, any agency thereof, or any political subdivision of the State, including, but not limited to, its instrumentalities and independent authorities, or any county or municipality, or any agency or authority of a county or municipality, with respect to real property or any estate, right, title or interest therein, that was at any time used or intended to be used for a public or transportation, environmental, recreational, governmental, educational, charitable, institutional or other similar purpose or held in public trust, whether such use be at the time of acquisition or sometime thereafter; or

b. A public utility, as the same is defined in R.S.48:2-13, with respect to real property or any estate, right, title or interest therein, used or intended to be used, for the provisions of utility service to the public including, but not limited to, federally regulated common carriers.

3. The period of possession of real estate required by P.L. , c. (C. ) (pending before the Legislature as this bill) shall include possession by the person and all others with whom the person is in privity.

4. N.J.S.2A:14-6, N.J.S.2A:14-7, N.J.S.2A:14-8, N.J.S.2A:14-30 and N.J.S.2A:14-31 are repealed.

5. Sections 1 and 4 of this act shall take effect on the second anniversary following the date of enactment of this act and shall apply to periods of possession of real estate occurring prior to, on, or after the date of enactment of this act. The remainder of this act shall take effect immediately.

STATEMENT

This bill would establish a new statutory scheme for adverse possession by repealing conflicting statutes and establishing a 20-year adverse possession period. The bill also intends to clarify certain case law concerning publicly-owned property and to protect the rights of owners of certain property that was tidal-flowed more than 40 years ago.

Adverse possession: Under the current statutes governing adverse possession, N.J.S.2A:14-30 and -31, a possessor is vested with title to real estate after 30 years’ actual possession of the real estate, unless the property consists of woodlands or uncultivated tracts. Title vests to the possessor of woodlands or uncultivated tracts after 60 years' possession. However, two other statutes seem to conflict with N.J.S.2A:14-30 and -31. Under the provisions of N.J.S.2A:14-6, every person with any right or title of entry into real estate must make such entry within 20 years after the right or title accrues; under N.J.S.2A:14-7, every action for real estate must be commenced within 20 years after the cause of action accrues. In J & M Land Co. v. First Union Nat’l Bank, 166 N.J. 493 (2001), the plaintiff, J & M, had 39 years’ possession of a tract of uncultivated land that actually belonged to First Union Bank, an adjoining landowner. When J & M sought a court declaration that it had acquired the land through adverse possession, the court turned it down, ruling that the 60-year period of adverse possession under N.J.S.2A:14-30 applies, and not the 20-year time period for bringing real estate actions under N.J.S.2A:14-7.

As a result of this decision, it is unclear how title is held after an adverse possessor has occupied land more than 20 years but less than 30 years (or, where applicable, 60 years). The Supreme Court noted that the Legislature might choose to clarify the matter by enacting appropriate legislation, 166 N.J. at 521, and this bill is intended, in part, to provide such clarification by establishing a 20-year adverse possession period.

The bill would provide that generally, if a person, for 20 years, has possessed real estate, all claims that may be made by any person for the recovery of the real estate are barred from any claim of right and the adverse possessor would have good title in the real estate. Such adverse possession would be recognized only if the possession was:

· actual, open and notorious, of a kind that would notify others of the claim to the property;

· inconsistent with ownership of the property by others; and

· continued uninterruptedly for the requisite period by the person and the person’s predecessors by occupancy, descent, conveyance or otherwise.

Publicly-owned or public utility property: Notwithstanding the newly established 20-year adverse possession period, the bill would provide that adverse possession does not apply to real property held by the State of New Jersey, or any agency or subdivision thereof, so long as the property is used or intended to be used for a public or a transportation, environmental, recreational, governmental, educational, charitable, institutional or other similar purpose, or held in public trust. In Devins v. Borough of Bogota, 124 N.J. 570 (1991), the court held that municipally-owned property that is neither presently dedicated to, nor used for, a public purpose is subject to acquisition by adverse possession. The State and its subdivisions, however, have numerous properties that are not in active public use but are being held for future public use such as the expansion of existing facilities or for highway or rail purposes. If these properties are subject to adverse possession claims, not only could the State lose valuable property but public projects may also be jeopardized.

The bill would therefore clarify that the holding in Devins is limited to properties that are not used or being held for present or future public purposes or other purposes as enumerated above, providing greater limitations on the ability to adversely possess publicly owned property.

Adverse possession would also not be applicable to a public utility, with respect to real property or any estate, right, title or interest therein, used or intended to be used, for the provisions of utility service to the public, including, but not limited to, federally regulated common carriers.

Further provisions: The bill provides that the required period of possession of real estate would include possession by the person and all others with whom the person is in privity.

Also, to effectuate the changes to the State’s adverse possession law, the bill would repeal N.J.S.2A:14-6, N.J.S.2A:14-7, N.J.S.2A:14-8, N.J.S.2A:14-30 and N.J.S.2A:14-31, all concerning existing statutory provisions on adverse possession.

Finally, the effective date provides for a transition to the new adverse possession provisions as follows: Sections 1 and 4 (20-year adverse possession period) and (repealing existing adverse possession statutes) would take effect on the second anniversary following the date of enactment and would apply to periods of possession of real estate occurring prior to this effective date, on this effective date, and after this effective date. The remainder of this bill would take effect immediately.