No Adverse Possession Where Encroachment is Not Open & Notorious

In a recent unpublished decision from the Appellate Division, the court held that a homeowner did not acquire a portion of his neighbor's property by adverse possession.  In New Jersey, if someone who doesn't own a particular area of real property possesses that property for over thirty years, the non-owner can take ownership of said property by filing an adverse possession action in Superior Court.  However, in order to do so, such possession must be (1) continuous and uninterrupted, (2) actual and exclusive, (3) open and notorious, and (4) adverse and hostile.  The court in this matter found that the possession, which consisted of an incorrectly-placed fence on an irregular shaped lot was not so "open and notorious" to give rise to an adverse possession claim.  Noting that, "[t]here is nothing about the small fenced-in area that would suggest an actual encroachment ... the encroachment was at the far rear of defendants' lengthy (400 foot) property and obscured on defendants' side by a swath of trees," the court determined that the property should remain with its original owner. (Chen v. Gesualdo)