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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...