S2143

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. 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, except as otherwise set forth in sections 2 and 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), 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. Except as provided in section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), this act 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 provision of utility service to the public.

3. If a person, for 40 years, has possessed real estate that was tidal-flowed prior to that period and not tidal-flowed at any time thereafter, the State shall be barred from any claim of riparian rights and the person shall have good title in the real estate, provided that the possession:

a. meets the conditions of subsections a., b., and c. of section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill);

b. has been based on an instrument describing the property that has been recorded as provided by law; and

c. has been accompanied by payment of all real estate taxes and other assessments on the property.

4. 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.

5. 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.

6. This act shall take effect immediately and shall apply to periods of possession of real estate occurring prior to, on, and after the effective date.

STATEMENT

This bill establishes a statutory scheme for adverse possession by repealing conflicting statutes and establishing a 20-year adverse possession period. The bill is also intended 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: Currently, N.J.S.2A:14-30 and 2A:14-31 provide that an adverse possessor can acquire title to real estate after 30 years’ uninterrupted possession (or after 60 years if the property consists of woodlands or uncultivated tracts). However, these provisions are not consistent with two other statutes, N.J.S.2A:14-6 and 2A:14-7, which set out a 20-year statute of limitations for actions concerning real estate, such as actions by a record owner to recover possession.

In J & M Land Co. v. First Union Nat’l Bank, 166 N.J. 493 (2001), the New Jersey Supreme Court held that an adverse possessor does not acquire title after 20 years, though after 20 years the adverse possessor may defeat an action by a record owner to recover possession. The adverse possessor can acquire title only after 30 years’ possession (or, where applicable, 60 years’ possession). 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.

Under section 1 of the 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 would be barred from any claim of right and that person would have good title in the real estate, except as otherwise set forth in sections 2 and 3 of the bill, 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.

Publicly-owned or public utility property: Section 2 of the bill provides that except as provided in section 3, the bill would not not limit the estate, right, title or interest of, or bar any claim or action by: (1) the State, any State agency, or any political subdivision of the State, with respect to real property that was 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; or (2) a public utility with respect to real property or any estate, right, title or interest therein, used or intended to be used, for the provision of utility service to the public.

Tidal-flowed property: Section 3 of the bill provides that the 20-year adverse possession period would also not be applicable to certain property that was previously tidal-flowed for which the State may have a claim for rights. Under the bill, if a person, for 40 years, had possessed such property and paid taxes on it; if title was properly recorded as required by law; and if the property was tidal-flowed prior to the 40-year period of possession but not tidal-flowed at any time thereafter, the State’s claim to the property would be completely barred. Thus, this previously tidal-flowed property would require a greater, 40-year adverse possession period against the State and other conditions, instead of the 20-year period otherwise applicable to adverse possession claims pursuant to the bill.

Further provisions:

Section 4 of 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.

To effectuate the changes to the State’s adverse possession law, section 5 of the bill repeals 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 concerning adverse possession.

Under section 6, the bill would take effect immediately and would apply to periods of possession of real estate occurring prior to, on, and after the effective date.

This bill is based in part on recommendations by the New Jersey Law Revision Commission in its “Final Report Relating to Adverse Possession,” issued in 2008.