The New Jersey Appellate Division recently ruled that a property owner’s $600 settlement with her title company does not preclude her later suing her neighbor for the neighbor’s encroachment on her properties, and further found that the neighbor did not own the disputed property possessed disadvantageously. See Leonard v. Panch, 2020 WL 5049098 (NJ Super. Ct. App. Div. 27 Aug 2020). This lawsuit is a property dispute between two neighbors. The plaintiff bought her property in 2006 and received an investigation showing that the defendant’s fence encroached on the back of her property. She later received a $600 settlement from her title insurance company for the procedure. In 2010, she sent the defendant a letter asking the defendant to remove his fence, but he refused. In 2015, the defendant “filled in” his stone driveway near the parties’ properties. Although the defendant claimed that the location of the driveway had not moved, the plaintiff claimed that the driveway had been extended beyond the property line onto her property. In 2018, plaintiff brought this silent title action with respect to both the fence and the driveway. The defendant then filed a counterclaim for alleged possession or proper easement. After a bank proceeding, the trial court issued a decision in favor of the plaintiff. It found that the fence had encroached on the plaintiff’s property by less than a foot and the driveway by 3 to 4 feet and that the defendant had not adversely owned the same.

On appeal, the court affirmed. First, it denied the defendant’s contention that the payment of $600 to the plaintiff by the title insurance company constituted a choice of remedies barring that claim. The court found that the $600 was a “nominal sum” apparently related only to the fence intrusion and, more importantly, that the doctrine of choice of remedies “has long been ‘characterised’ [as] ‘a strict and now largely obsolete rule’ and one ‘to limit strictly within their common sense and spirit’.” Therefore “it would be unreasonable and contrary to the spirit of this just doctrine to transfer ownership of the plaintiff’s property to the defendant under the present Circumstances.” Second, the court found that because of the limited interference, the defendant’s use of the disputed property was not “adverse or hostile” and therefore could not form the basis of an adverse claim of ownership. The plaintiff mowed the disputed area for a decade and informed the defendant that his fence encroached on her property in 2010. In addition, the fence encroached by less than a foot, and “a presumption that plaintiff knew of the encroachment would have been unreasonable, particularly as defendant failed to make ‘extensive improvements’ to the property.” Accordingly, the court upheld the decision in favor of the plaintiff.