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Devins v. Borough of Bogota

Decided: November 1, 1989.

JAMES J. DEVINS AND MARY J. DEVINS, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF BOGOTA, DEFENDANT-RESPONDENT



Gaulkin, Scalera, and D'Annunzio. The opinion of the court was delivered by Scalera, J.A.D.

Scalera

The narrow issue presented is whether private citizens may, by adverse possession, gain title to a piece of municipally owned property which had been acquired through a tax foreclosure and which is not dedicated or used for a public purpose. We hold that they may not do so.

The essential facts are not in dispute, making the issue ripe for determination as a matter of law. R. 4:46-2. Plaintiffs are the owners of a one-family dwelling at 132 Fairview Avenue in the Borough of Bogota, known as Lots 11 and 11A in Block 98 of the local tax assessment map, measuring 50 feet by 100 feet. They purchased the property on June 14, 1965 from persons who had owned it since 1958.

Next to that property is Lot 10, Block 98, measuring 25 feet by 100 feet. In November of 1962, the Borough had acquired

title to that vacant property through an in rem foreclosure of a tax sale certificate pursuant to N.J.S.A. 54:5-104.29 et seq. Thereafter, the lot was permitted to remain vacant and unused by the Borough. Plaintiffs, as well as their predecessors in title, proceeded to utilize it as though it was a part of their property. A fence was constructed by plaintiffs' predecessors between lot 9 and 10, even before the Borough had foreclosed, creating the impression that lot 10 was part of plaintiffs' property. The front portion of lot 10 and part of lot 11 were paved and used for parking. During plaintiffs' ownership, they placed a shed and a basketball backboard on the lot. In other words, their uses gave all the indicia of the Borough's lot being part and parcel of plaintiffs' property.

The record indicates that the Borough kept the empty lot on its tax rolls, even to the extent that in 1986 it was assessed for tax purposes at $12,500. However, since the foreclosure, no taxes have been paid on the lot by anyone. When plaintiffs acquired title to their own property they also received a quit claim deed to the Borough's lot from their predecessors which they duly recorded.

In 1985, after using the lot for over 20 years plaintiffs, in a letter to the Borough, claimed title to it on the grounds of adverse possession. However, the Borough rejected that claim. As a result, plaintiffs eventually filed the instant action on December 14, 1987 seeking to obtain title to the property by prescription. Ultimately, the trial judge granted summary judgment in favor of the Borough ruling that "adverse possession will not run against a municipality."

On this appeal, plaintiffs urge that since the Borough had failed to use this lot for a "public purpose," it was subject to alienation and acquisition by adverse possession just as with land held by "private individuals when acting in a proprietary fashion." They also argue that the elements of adverse possession have been clearly established. However, we need not address that issue in light of our disposition.

The acquisition of title to property by adverse possession involving actual and exclusive, adverse, visible or notorious and continued and uninterrupted possession is well settled in this State. Patton v. North Jersey Dist. Water Supp. Comm'n., 93 N.J. 180, 186 (1983); Braue v. Fleck, 23 N.J. 1, 16 (1956). Such a right, however, was not recognized at common law. Predham v. Holfester, 32 N.J. Super. 419, 421-423 (App.Div.1954). Rather, the foundation for such acquisition lies in the failure of the true owner to commence an action within the period designated by the appropriate statute of limitations. Mannillo v. Gorski, 54 N.J. 378, 387 (1969). Apart from that, no title can be gained by prescription. O'Keeffe v. Snyder, 83 N.J. 478, 494 (1980).

Property may be acquired in such a fashion under either (1) N.J.S.A. 2A:14-6*fn1 and 2A:14-7,*fn2 (2) N.J.S.A. 2A:14-30,*fn3 or (3) N.J.S.A. 2A:14-31.*fn4 ...


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