New Jersey Real Estate Law Decision Examines Difference Between Analysis of Adverse Possession and Proscriptive Easements

It’s easy to think that under New Jersey real estate law, “squatter’s rights” is a thing of the past.  However, it is very much alive, although very difficult to prove.  There are two similar ways to obtain an interest in property owned by another, through either adverse possession or a prescriptive easement.  While the requirements for each are similar are similar, they are still different.  These requirements were recently examined in a New Jersey appeals court decision in the case of Shea vs DiPopolo.

Kenneth and Catherine Ann Shea purchased a home on Columbia Turnpike in Florham Park, New Jersey in 2003.  The survey showed that their horseshoe shaped driveway, both ends of which connect to Columbia Turnpike, ran onto the edge of the neighboring property.  The Shea’s house was built in 1981, and aerial photographs show that the driveway was in use and going over the neighbor’s property since at least April 19, 1990.  It was originally gravel, but the Sheas paved it between 2005 and 2007.   They .used it until 2021 when their neighbors Romo and Dolores DiPopolo, sent a letter telling them to stop using it and then put a fence up barring their access.

The DiPopolos bought the neighboring property in 2001.  It vacant until they built a house there and moved into it in 2016.  The DiPopolos also owned the property behind it.  They developed that property in 2004 and 2005, using the disputed driveway – which ran on both properties – to move the construction equipment used in the development.

After the DiPopolos barred their access to the driveway, the Sheas filed suit in the Chancery Division of the Superior Court of New Jersey in Morris County, asking the court to grant them a prescriptive easement for use of the driveway.   The trial judge held conducted a bench trial, after which he denied their application because he found that their use of the driveway was not “exclusive” because the title owners, the DiPopolos, also used it.

The Sheas appealed to the Appellate Division of the Superior Court.  The Appellate Division reversed the trial judge’s decision because it found that the judge had used the wrong analysis.

The Appellate Division found that the trial judge had used the test applied to determine whether someone had proved adverse possession over the driveway (adverse possession is sometimes called “squatter’s rights”).  However, that was not what the Shea’s were seeking – they sought a prescriptive easement.

Adverse possession will give a successful plaintiff title, or ownership, of the disputed real estate,  An easement does not confer ownership.  An easement will only give the successful plaintiff a non-ownership right for the holder to use the subject property in some particular manner.  Easements can be granted by an owner expressly or impliedly, However in this case there was no express conveyance, and there could not be an implied conveyance because there was never a common owner.  The Sheas therefore needed to prove the elements of a prescriptive easement.

The Appellate Division explained that:

to establish a prescriptive easement, a plaintiff must demonstrate its use of the property is adverse or hostile, exclusive, continuous, uninterrupted, visible[,] and [open and] notorious. The plaintiff must prove these elements by a preponderance of the evidence.  Open use means the use is not secret.  Notorious use denotes the use is actually known to the owner, or is widely known in the neighborhood. Additionally, the claimant must show the adverse and open or notorious use continued for thirty years. However, pursuant to the doctrine of tacking, the claimant may combine the years of use with those of their predecessors in interest. Although the claimant bears the burden of proving the required elements of a prescriptive easement, the adversity element is presumed if the claimant “shows open, continuous, uninterrupted, exclusive use for the prescriptive period.”

Adverse possession requires all these elements, but it also has a different requirement/definition of exclusivity.  “To obtain title by adverse possession, the plaintiff must use the property exclusively and it cannot be shared with anyone, including the owner of the property….”  But this element is not required to obtain a prescriptive easement – the Appellate Division explained: “By contrast, in the prescriptive-easement setting, the claimant’s use may be shared with the record owner and still meet the exclusivity requirement as that term is used under this [prescriptive easement] analysis.”  Thus, since the trial judge denied the Sheas’ application for a prescriptive easement because the Sheas did not establish the “exclusivity” necessary for a prescriptive easement because the DiPopolos also used the driveway, the Appellate Division reversed the trial court’s decision and remanded it to the Chancery Division for a decision using the proper analysis of “exclusivity.”

Thus, continuous use for more than 30 years – even jointly with the record owner – can establish the basis for a prescriptive easement.

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