The Grandfathered Two-Family, the Fence, and the Driveway
Amara is buying a 1920s two-family in a New Jersey borough zoned R-1 (single-family). Both units have been rented continuously since 1974. The seller's bargain and sale deed with covenants describes the lot by metes and bounds; Amara's new survey shows the rear fence sits 18 inches onto the neighbor's parcel, and the driveway to the detached garage crosses a 10-foot strip of the neighbor's land that tenants have used openly for parking since 1996, without permission. The title company proposes to except both from coverage. Amara plans to convert the ground floor into a third unit and to build a rear deck that would span the fence line.
1. Can Amara add a third unit? Analyze the zoning position and identify what she would need.
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The two-family use is legally nonconforming: it predates the R-1 restriction and has continued, so it is protected and may be continued. "Grandfathered" is not a blank check, however. New Jersey's Municipal Land Use Law protects the continuation of a nonconforming use but not its enlargement, expansion, or increase in intensity.
Converting the ground floor into a third unit is an increase in the number of dwelling units - an expansion of the nonconforming use. That requires a use variance (D variance) from the municipal Zoning Board of Adjustment under N.J.S.A. 40:55D-70(d), which requires the applicant to prove both:
- Positive criteria - special reasons, e.g., that the site is peculiarly suitable or that the use is inherently beneficial; and
- Negative criteria - that the variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan.
The new deck will also need bulk/height/coverage relief, and the application will need site plan review. Before all that, confirm the nonconforming status is documented with the municipality - an undocumented nonconformity is a title and financing problem.
2. The fence encroachment: what should happen before closing, and why won't adverse possession solve it?
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An 18-inch encroachment is a title defect, and the title company is right to schedule an exception, because it cannot insure over an unquantified boundary problem.
Adverse possession is a poor practical answer:
- New Jersey's period is 20 years of actual, continuous, open, notorious, exclusive, and hostile possession (N.J.S.A. 2A:14-30). The setup does not establish when the fence was built, so the period may not even have run.
- Even if it has run, title does not shift by itself. It takes a quiet title action in the Superior Court, which means time and money, and a lender will not close on a guess.
Realistic fixes, all recorded with the county clerk/register:
- A quitclaim deed from the neighbor for the strip, if the neighbor will convey; or
- A written easement or boundary line agreement that the title company will insure; or
- Relocating the fence, if that is cheaper than the negotiation.
At minimum, Amara must know the encroachment is excepted from the policy and is a lender issue, not a cosmetic one.
3. The driveway has been used openly since 1996 without permission. Does Amara have a prescriptive easement, and how should she handle it?
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She may have a claim, but she should not buy on the assumption that she owns one.
Elements for a prescriptive easement in New Jersey are essentially those for adverse possession over a 20-year period, except exclusivity is not required: use that is open, notorious, continuous, adverse (not permissive), and uninterrupted for 20 years. Since 1996 the period is comfortably exceeded, and "without permission" supplies the adverseness. But two cautions:
- Permissive use defeats prescriptiveness, and a court may infer permission for a neighborly driveway arrangement.
- A prescriptive easement is established only by adjudication; until then it is a litigable claim, not insurable title.
Practical handling:
- Get a written, recorded easement agreement from the neighbor describing the strip and maintenance obligations; that converts a claim into insurable title.
- Have the title company confirm in advance that it will insure the easement and that the lender will accept it.
- Disclose the survey issue to the lender and resolve it before the inspection and financing deadlines, not at the closing table.