This article addresses adverse possession and property disputes in NJ. It is important to understand your rights when boundary lines are challenged by a neighbor.
A recent New Jersey appellate court decision offers important lessons for homeowners involved in property boundary disputes. The case involved two neighboring properties in Ventnor where a long-standing fence became the center of a legal battle over land ownership.
What Happened in This Case
Sam and Alice Heller purchased their property in 2004. At that time, a wooden fence marked the rear boundary between their property and the adjacent lot. The fence had been in place since at least 1984, separating the two properties for more than twenty years before the Hellers bought their home.
When the Hellers bought the property, they obtained a survey showing the fence location. In 2009, they replaced portions of the fence with proper municipal permits. Neighbors confirmed that the fence line had remained in the same location for decades, and that the Hellers and previous owners had maintained and used the area up to the fence as their own property.
In 2017, Gail DiSylvestro purchased the neighboring property. She obtained surveys in 2019 and 2021 that showed the Hellers’ fence encroached onto her property by approximately eight feet. In November 2023, DiSylvestro removed the existing fence and installed a new one several feet onto what the Hellers believed was their property.
The Hellers filed a lawsuit seeking to establish legal ownership of the disputed strip of land through a legal doctrine called “adverse possession.”
How the Court Ruled
The trial court granted summary judgment in favor of the Hellers, finding they had established ownership of the disputed land through adverse possession. The appellate court affirmed this decision.
The court emphasized that fences are generally considered clear and overt signs of property possession that signal ownership to the community. The evidence showed the fence had been a continuous boundary marker for more than thirty years before DiSylvestro removed it in 2023. This long-standing, visible fence line was sufficient to establish the elements required for adverse possession under New Jersey law.
DiSylvestro argued that a utility easement on the disputed land meant the Hellers’ use was permissive rather than adverse. The court rejected this argument, finding that the easement did not prevent the Hellers from establishing adverse possession.
DiSylvestro also argued that because the court’s order did not include a precise legal description of the land (called a metes and bounds description), the order was not final and her motion for reconsideration should have been considered timely. The court disagreed, finding that the order sufficiently defined the disputed land as the area up to the fence line as it existed before DiSylvestro moved it in November 2023.
What Is Adverse Possession?
Adverse possession is a legal doctrine that allows someone to gain ownership of land through long-term, open use of that property. In New Jersey, to claim ownership through adverse possession, a person must prove their possession was:
- Actual and exclusive – They physically occupied and used the land as their own
- Open and notorious – The use was visible and obvious to anyone, including the legal owner
- Continuous and uninterrupted – The use continued without significant breaks
- Adverse and hostile – The use was without the owner’s permission, though knowing intentional hostility is not required
- For the required time period – In New Jersey, this is generally thirty years for most land and sixty years for woodlands or uncultivated tracts
Practical Advice for Homeowners
This case provides several important lessons for property owners:
1. Document Your Property Boundaries Early
When you purchase property, obtain a professional survey that clearly shows your boundary lines. Keep this survey with your important property documents. If you discover that structures like fences, driveways, or buildings cross boundary lines, address the situation promptly rather than allowing it to continue for years.
2. Long-Standing Fences Matter
If a fence has marked a property boundary for decades, courts may view it as strong evidence of the actual property line, even if a survey shows the legal boundary is in a different location. The fence in this case had been in place for over thirty years and was maintained by multiple property owners during that time.
3. Don’t Assume Surveys Tell the Complete Story
While surveys are important legal documents, they don’t automatically trump decades of actual possession and use. If your neighbor has been maintaining property up to a fence line for thirty years or more, they may have established legal rights to that land even if a new survey shows the technical boundary is elsewhere.
4. Address Boundary Disputes Quickly
If you discover an encroachment on your property, don’t wait years to address it. The longer you allow someone to occupy and maintain land, the stronger their adverse possession claim becomes. Once the statutory period passes (thirty years in New Jersey for most property), you may lose your legal right to reclaim that land.
5. Get Professional Legal Advice Early
If you’re involved in a boundary dispute, consult with an experienced real estate attorney before taking action. Don’t remove fences, structures, or landscaping on disputed land without legal guidance. DiSylvestro’s decision to remove the existing fence and install a new one on disputed property led to costly litigation that she ultimately lost.
6. Keep Records of Property Maintenance
Maintain records showing how you’ve used and maintained your property. Photographs, receipts for fence repairs or replacements, municipal permits, and neighbor statements can all serve as evidence if a boundary dispute arises. In this case, the Hellers’ 2009 fence replacement with a municipal permit, along with neighbor certifications, helped establish their continuous possession.
7. Understand That Easements Don’t Automatically Prevent Adverse Possession
The presence of a utility easement or similar right doesn’t necessarily mean you can’t establish adverse possession of property. The court in this case found that the utility easement on the disputed strip did not prevent the Hellers from claiming ownership through adverse possession.
8. Be Aware of Time Limits for Legal Action
Court orders and deadlines matter. In this case, DiSylvestro’s motion for reconsideration was denied as untimely because it was filed forty-three days after the court’s order, beyond the twenty-day deadline required by court rules. If you’re involved in litigation, pay close attention to all court deadlines and consult your attorney immediately if you’re considering any post-judgment motions.
9. Don’t Rely on “Minor Encroachment” Arguments
DiSylvestro argued that the encroachment was minor and should not result in loss of her property. The court rejected this argument, finding that the fence’s existence served as clear evidence of open and notorious possession that distinguished this case from ordinary minor encroachments.
The Bottom Line
Property boundary disputes can be complex, expensive, and emotionally charged. The best approach is prevention: know your boundaries, document your property lines, maintain open communication with neighbors, and address potential issues before they become legal battles.
If you’re facing a boundary dispute—whether you’re the party claiming adverse possession or defending against such a claim—seek qualified legal counsel immediately. An experienced real estate attorney can evaluate your specific situation, explain your rights and options, and help you navigate the legal process effectively.
The law recognizes that sometimes the reality on the ground differs from what property records show. When someone has openly, continuously, and exclusively used land as their own for thirty years or more, the law may recognize that use as creating actual ownership rights, even over the objections of the record title holder.
This article is for informational purposes only and does not constitute legal advice. Every property dispute involves unique facts and circumstances. If you’re facing a boundary dispute or adverse possession claim, please consult with a qualified attorney who can evaluate your specific situation.
