Sometimes It Just Pays To Be Hostile

April 2015Articles In the Zone

On March 6, 2015, the New Jersey Appellate Division, in a yet-to-be published opinion, reiterated the longstanding maxim that when one is claiming an interest in land owned by another based upon use or a claim of right, it is better to be hostile than friendly. In Bloom v. Morales, the plaintiff property owner, premised essentially upon extended periods of use by his deceased mother, who previously owned the plaintiff’s property, claimed a prescriptive easement in the adjacent neighbor’s driveway used by her and subsequently by him for access to the garage in the rear of his property. The driveway was located entirely upon the adjacent neighbor’s property. The plaintiff’s mother enjoyed a friendly relationship with her neighbor.

After the mother’s death, the neighbor sold their property. The new owners began constructing a stockade fence along the property line, thus impairing the plaintiff’s continued use. The plaintiff sought an injunction, after which a series of motions were filed. The plaintiff sought an easement by prescription. The neighbors countered that the driveway use was consensual1. On review, the trial court found no evidence that the plaintiff’s mother’s use, or the plaintiff’s use, of the driveway was hostile, a necessary element to create an easement by prescription (the same element of proof is necessary when claiming title by adverse possession). On appeal, the Appellate Division affirmed, finding that the plaintiff failed to establish that his mother’s use of the driveway was adverse or hostile and under a claim of right, rather than indulgent and permissive. The record was devoid of the required element of adversity. Something to remember.

View the entire issue of In the Zone (pdf)

1The length of time during which the driveway was used by the plaintiff’s mother satisfied the thirty-year requirement and was not an issue.