adverse possession | Title Nerds

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Surveyor Keith Ludwig, PLS was the special guest for this episode of Title Nerds, in which he discussed with co-hosts Mike O’Donnell and Bethany Abele his experience of over 42 years in the industry. With a specialty in researching ancient deeds and surveys, Keith shared some of the more fascinating matters he has encountered while conducting land surveys, including serving as a surveyor for a defendant in Atlantic County where title had gone back and forth between the same two families numerous times over 200 years. He noted that a major misconception about surveyors is that it is their responsibility to determine if a particular easement or covenant affects the property in question. That is not true. The surveyor can only state where the easement/covenant lies physically, but cannot advise whether it affects the property; that is the responsibility of the attorney to determine.

Keith noted the importance of looking back at mother deeds when preparing boundary surveys, no matter how much time had gone by, and also discussed the interesting issue of streams and tidelands as boundary lines, when the water flow may have shifted.

Mike and Bethany were interested to hear how surveying has changed during the course of Keith’s career, with GPS revolutionizing modern surveying procedures.

Mike then interviewed Riker Danzig’s newest associate on our Title Insurance team, Kori Pruett, who provided an overview of a New York case involving AirBNBs. In West Mountain Assets LLC v. Dobkowski, the New York Supreme Court held that the plaintiffs, who were using their home as an AirBNB, were violating a deed restriction limiting use to “single family residential purposes” only. The plaintiff had brought a suit for alleged interference with its tenants’ (various AirBNB clients) free use of the property, claiming that the defendant neighbors were interfering with use of the road servicing both properties.

Defendants counterclaimed for a declaration that the plaintiff’s use of the property for short-term rentals violated the deed restrictions, which stipulated the property could only be used for single family residential purposes, could not be used for commercial activity, and could not be used for “noxious, dangerous, offensive or unduly noisy activity of any nature.” Defendants also counterclaimed for adverse possession of a portion of the road parcel.

Kori explained that the defendants were granted summary judgment on the first counterclaim, with the Court holding that the “transient living” nature of AirBNB tenants fell outside the scope of a single-family residential use. The adverse possession claim was dismissed.

Kori cautioned that this case demonstrates that property owners need to pay attention to any deed restrictions before renting out their home as an AirBNB or VRBO type of rental.

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Episode 7 features one of Riker Danzig’s impressive retired judges, the Hon. Travis Francis, who was Assignment Judge for Middlesex County, Superior Court of New Jersey before joining Riker Danzig. Judge Francis is now an active mediator and discovery master in the Firm’s Alternative Dispute Resolution Practice. Co-Host Bethany Abele interviews Judge Francis about some of the intriguing title insurance and real estate cases that came before him when he was on the bench, including issues of quiet title, specific performance and adverse possession. Co-Host Michael O’Donnell joins Bethany and Judge Francis in the discussion, which headed “into the weeds,” literally, as cases involving farmers and fences kept “cropping” up. Keeping us on track, Judge Francis provides insights and best practices for counsel bringing title insurance cases, including guidance on pursuing orders to show cause and motions for relief to provide for a good experience with the deciding judge.

Next, Mike invites Riker Danzig attorney Kevin Hakansson to unpack the Cherry v. Ziad Hadaya case, 2021 N.J. Super. Unpub. LEXIS 2571 (App. Div. Oct. 29, 2021), in which the NJ Appellate Division held that neighbors could enforce deed restrictions tracing back to a 1928 deed to prevent another neighbor from subdividing their property. In Cherry, Defendants owned a plot of land on Jefferson Road in Princeton that was originally part of a larger parcel conveyed in 1928. While the 1928 deed contained restrictions on the land regarding subdivision, the 2004 deed did not. After the defendants received approval from the Planning Board in 2008 to subdivide its property into two lots, and later applied to subdivide the larger resulting lot into two more lots, the plaintiffs, who owned neighboring properties, filed a complaint seeking to void the 2008 subdivision and to enjoin further subdivision based on the 1928 deed restrictions relating primarily to the frontage of the lots. The Chancery Court dismissed some neighbors’ claims for lack of standing as they were not in the chain of title of the 1928 deed. But it granted summary judgment for the other plaintiffs whose properties were within the 1928 deed chain of title and ordered the Defendants to re-convey the plots back to their 2004 dimensions. On appeal, the Appellate Division affirmed, agreeing that enforcement of the 1928 deed restrictions was reasonable, and that plaintiffs in the chain of title were among those intended to be incorporated into the neighborhood scheme.

Title Nerds

A Title Insurance Podcast by Riker Danzig

Tag Archives: adverse possession

Season 2, Episode 3

Season 1, Episode 7