Vantage Point: Stealing State Land

Shutterstock 102952880We already know there are circumstances under which it is possible to adversely possess lands claimed by a governmental entity. That can happen when the land is not used for a governmental purpose but instead as private property (see Siejack v. Mayor and City Council of Baltimore for just one example). Is that the first step toward just outright stealing state land? A sand and gravel company in southern New Jersey almost got away with it.

In April 2021, the New Jersey Superior Court foiled appropriation of over 250 acres from the Pinelands National Reserve after the Phoenix Pinelands Corporation (Phoenix hereafter) spent over $1 million on its “nefarious actions” (the Court’s branding) as a “title raider.” Phoenix owned adjoining land for its quarrying operations and wanted to expand. But rather than approach the State to try to buy its land in this ecologically rare and environmentally sensitive area, Phoenix undertook a “surreptitious two-decade-long quest to undermine and cloud the State’s title” to seven parcels, establishing its own competing chains of title on which it based its subsequent actions.

It is true that title in this area is difficult to track and trace, partly because the county in which it is situated has changed after a new municipality was divided off from it, and partly because in this remote and sparsely developed area of Little Egg Harbor Township there are many absentee owners and few living on the land to exercise vigilance over their boundaries. Additionally, many municipalities in the Pinelands area didn’t have tax maps until far into the twentieth century; Little Egg Harbor had its first tax map in 1959.

But Phoenix had hired a team of searchers, genealogists, and lawyers to track down possible heirs of ancient owners (tracing title from origin forward, rather than from the present back through time, to avoid State claims, and admittedly making some mistakes along the way) and purchased quitclaims of possible fractional interests. With those deeds in hand, Phoenix approached the Township’s assessor, requesting the tax map to be redrawn to consolidate the seven lots in question with other lands Phoenix did own, to be assessed to Phoenix (except for one tract for which it could gain no remote color of title, which it asked to have assessed to Phoenix’s president).

The Township—glad to classify the land as taxable again—complied, erasing the boundaries of the State-owned parcels while still collecting Payments in Lieu of Taxes from the State of New Jersey at the same time it collected taxes from Phoenix. Neither the assessor nor Phoenix notified the State of changes to the tax maps or to the tax assessment rolls. Instead, New Jersey found out about them from a local resident who wrote to the State because Phoenix’s expansion of a waterway triggered his own investigation into Phoenix’s actions that possibly affected his own private rights.

At trial, the State’s witnesses included a number of retired employees who had worked on the transactions 25 to 30 years before and could not offer more than general information about the State’s process of land acquisition, which includes title searches, appraisals, and surveys. But there was ample past and current expertise on the stand for the State. A surveyor pointed out discrepancies between deed calls and coordinates in Phoenix’s deeds. A title expert noted that tax mapping errors created one lot that was really part of a State-owned parcel—to which Phoenix’s expert agreed.

Other questions arose. Could foreclosure on a tax sale certificate issued by an adjoining municipality convey title in Little Egg Harbor? Does recording a deed in the wrong county provide ample notice to subsequent purchasers? If a deed states four times that it is conveying only ten acres, but repeats a description of 150 acres from the deed into the grantor, what is really transferred? What actions are sufficient to show actual possession, and how does peaceable possession differ from adverse use of someone else’s property?

Title insurance proved useless. One of the title companies insuring the State’s interests in three properties defended the State for two years before making the business decision to pay the policy limits on all of them to end its responsibilities. Another did the same for the one parcel it insured. The third, insuring the last three parcels for the State, also insured Phoenix’s competing title to all seven lots.

If this sounds convoluted, it is. But the case provides a good series of illustrations of the importance of understanding both title and surveying principles and how they work together. It also illustrates how hard it is to educate the court about deeds, title, and surveys. The lower court’s reasoning and decisions are hand-wringingly frustrating.

Thankfully, the Superior Court found that Phoenix’s actions clearly violated public policy, barring it from any remedy in New Jersey’s Chancery court, where land cases are tried in equity rather than in a court of law. Chancery is where this case began as a quiet title action initiated by Phoenix. Appeals and reversal resulted in the present 175-page opinion, which examines when equity is appropriate and when it isn’t.

“…Phoenix researched the State’s titles, ignored its recorded deeds and surreptitiously acquired hostile interests from the heirs of long-dead record owners for its own purpose of undermining the State’s title…” (page 98) Claiming an attempt to return land to the tax rolls was not the moral high ground here.

While not officially published, the case is available online. The full name of the case is Phoenix Pinelands Corporation v. Harry Davidoff et als—the list of defendants is about three pages long—issued by the New Jersey Superior Court Appellate Division on April 29, 2021

About the Author

Wendy Lathrop, PS, CFM, CFS

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.