August 20, 2010
ALPHONSE SISCA AND RENEE SISCA, HIS WIFE, PLAINTIFFS-RESPONDENTS,
EMANUEL BINDER AND BLANCHE BINDER, HIS WIFE, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-507-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 10, 2010
Before Judges Sabatino and Ashrafi.
This case arises from a boundary dispute between residential neighbors. Appellants seek review of the trial court's grant of summary judgment in favor of their neighbors, ejecting appellants from the disputed portion of property and denying their claim of adverse possession. We affirm.
The following facts and circumstances are germane to our analysis. Plaintiffs in the first-filed action, Alphonse Sisca and Renee Sisca, husband and wife (collectively "the Siscas"), own and occupy residential property located at Block 1005, Lot 13 in Englewood Cliffs. The Siscas bought the property in 1994. At the time of their purchase, they obtained a survey description of the property, which showed no encroachments on the property.
Defendants in the first-filed action, Emanuel and Blanche Binder, also husband and wife (collectively "the Binders"), own and occupy residential property located at Block 1005, Lot 1 in Englewood Cliffs. The eastern edge of the Binders' property borders the western edge of the property owned by the Siscas. The Binders purchased and moved into their premises in 1960, nearly thirty-four years before the Siscas.
In 1969 the Binders erected a swimming pool on their property. Around that same time, they hired a company to install a chain-link fence separating their property from the adjoining lot. According to Mr. Binder, he showed the fence installer various stake markings, which he recalls that his builder had used to mark the property border. The installer apparently followed those markings in putting in the chain-link fence.
After the Siscas moved into their adjacent dwelling, they installed a wooden fence, aligning it parallel to the chain-link fence erected by the Binders. The photographs in evidence, prints of which were supplied to us for the appeal, show that the wooden fence is situated right next to the chain-link fence. The photographs also show that, on the Binders' side of the fences, there is an elevated children's playhouse, consisting of a metal platform, a ladder, and a depiction of the children's storybook character, "Thomas the Tank Engine."*fn1
On February 19, 2008, an attorney representing the Siscas sent the Binders a certified letter. The letter enclosed a recent survey of the boundary between the two properties. The survey showed that both the chain-link and the wooden fence were actually situated on the Siscas' side of the boundary. In particular, the survey reflected that the area of encroachment is a long, narrow triangle, about two feet wide at its maximum point, and running for about seventy-five feet along the almost ninety-two foot border.
In response, the Binders maintained that they have a right to keep their fence where it is. They contended that the boundary*fn2 has been altered since the time they installed the chain-link fence in 1969, by virtue of the doctrine of adverse possession. The Siscas, in turn, disputed the Binders' adverse possession claim.
The Siscas filed a complaint against the Binders seeking the removal of the chain-link fence, and the enforcement of their property rights with respect to the area of encroachment. Shortly thereafter, the Binders filed their own complaint to quiet title by adverse possession. The two lawsuits were consolidated in the Chancery Division. Following certain discovery, including a deposition of Mr. Binder, the Siscas moved for summary judgment.
After considering the parties' submissions and hearing oral argument, Judge Ellen Koblitz granted summary judgment to the Siscas, and rejected the Binders' claim of adverse possession. The judge concluded that the Binders had failed to demonstrate, as the law requires, that the Siscas had actual knowledge of a minor encroachment prior to having the new survey completed in 2008. The judge further noted that, under the applicable law, "no presumption of knowledge arises from a minor encroachment along a common boundary." The judge ordered that the chain-link fence and the playhouse be moved from the disputed area, noting that doing so would not impose any significant burden upon the Binders.
On appeal, the Binders argue that the trial court misapplied the law of adverse possession. They contend that summary judgment therefore was granted to the Siscas in error.
In reviewing the trial court's summary judgment order, we construe the facts in the record, and all reasonable inferences that can be drawn from them, in a light most favorable to the non-moving parties. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c); see also Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (applying the same standard on appeal that trial courts utilize in deciding summary judgment motions). In addition, we review the trial court's application of the law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Pursuant to N.J.S.A. 2A:14-6, "[e]very person having any right or title of entry into real estate shall make such entry within 20 years next after the accrual of such right or title of entry, or be barred therefrom thereafter." Moreover, under N.J.S.A. 2A:14-31, adverse possession of developed real estate triggers not only a right of entry, but "title in the actual possessor and occupier of all such real estate." See also J & M Land Co. v. First Union Nat'l Bank, 166 N.J. 493, 500 (2001). An "entry and possession [of land] for the required time which is exclusive, continuous, uninterrupted, visible and notorious, even though under mistaken claim of title, is sufficient to support a claim of title by adverse possession." Mannillo v. Gorski, 54 N.J. 378, 386-87 (1969); see also Stump v. Whibco, 314 N.J. Super. 560, 576 (App. Div. 1998).
Although the fencing of land is usually indicative of an assertion of ownership, not all fenced encroachments support a finding of adverse possession. A "minor encroachment," i.e., "an intrusion so small that it cannot easily be detected without a survey," is insufficient to support a claim of adverse possession. Stump, supra, 314 N.J. Super. at 577. When an encroachment is so small that it is not obvious without a survey, "it cannot be presumed that the true owner is aware of it." Ibid.
The Supreme Court underscored the "minor encroachment" exception in Mannillo, supra. In that case, the Court found no right of adverse possession had been created by steps and a concrete walk that intruded fifteen inches onto the land of the adjacent property owner. Mannillo, supra, 54 N.J. at 382. The Court flatly rejected the proposition that an encroachment of such a "small area," which was "not clearly and self-evidently apparent to the naked eye," could give rise to a presumption of adverse use. Id. at 388. To apply such a presumption to "minor border encroachments not exceeding several feet," the Court observed, "would fly in the face of reality and require the true owner to be on constant alert for possible small encroachments." Ibid.; see also Maggio v. Pruzansky, 222 N.J. Super. 567, 579 (App. Div. 1988) (likewise rejecting an adverse possession claim based upon a small infringement of slightly more than a foot long strip along a masonry wall).
Judge Koblitz correctly applied these legal principles in the present matter. The encroachment of the Binders' chain-link fence over the actual border dividing the two lots was not discovered by either of the parties until 2008. The encroachment was not detected with the naked eye, but as the result of a formal survey.
The dimensions of the encroachment are not substantial. Although the incursion is about seventy-five feet in length, it is very narrow, tapering from a maximum point of no more than two feet in width down to zero. The Binders argue that these dimensions apparently exceed the size of the encroachment involved in Mannillo. That may be so, but it still does not transform this modest border encroachment into an open and notorious taking. In such circumstances, it does not matter that the Binders' chain-link fence has been in place for more then thirty years.
We reject the Binders' argument that the positioning of the subsequently-installed wooden fence signifies that the Siscas relinquished their ownership rights to property on the other side of that fence. It is not unusual for a landowner to install a fence a short distance from the precise edge of his or her property. Moreover, the record is barren of any evidence that the Siscas were aware of the encroachment when they erected the wooden fence; in fact, the first survey they received when they bought their home in 1994 disclosed no encroachments. Consequently, there was no voluntary relinquishment by the Siscas of a "known right," and they did not waive entitlement to have the actual boundary, as it was ultimately revealed by the most recent survey, enforced. See Knorr v. Smeal, 178 N.J. 169, 177-78 (2003) (defining waiver as "the voluntary and intentional relinquishment of a known right").
In sum, the Chancery judge's reasoning was entirely sound, and it was not premature or unfair to grant summary judgment to the Siscas. The facts, as developed in this record, do not establish a right of adverse possession under the applicable law.