We already know that there are circumstances in which it is possible to adversely own land claimed by a government agency. This can happen if the land is not used for state purposes but as private property (see Siejack v. Baltimore Mayor and City Councilor just for an example). Is this the first step to simply stealing state land? A sand and gravel company in southern New Jersey almost got away with it.
In April 2021, the New Jersey Supreme Court foiled the appropriation of over 250 acres from the Pinelands National Reserve after the Phoenix Pinelands Corporation (hereafter Phoenix) paid over $ 1 million for its “nefarious acts” (branding the court) had issued as “title robber”. “Phoenix owned adjoining land for its quarries and wanted to expand. But instead of reaching out to the state to try to buy their land in this ecologically rare and environmentally sensitive area, Phoenix embarked on a “clandestine two-decade quest to undermine and tarnish the state’s title” on seven parcels and established its own competitive chains of titles on which it based its subsequent actions.
It is true that the title is difficult to track and trace in this area, partly because the county it is in changed after a new ward split, and partly because it is in this remote and underdeveloped area of Little Egg Harbor Township has many absentee owners and few live in the countryside to exercise vigilance beyond its borders. In addition, many communities in the Pinelands area did not have tax cards until well into the 20th century; Little Egg Harbor had its first control card in 1959.
But Phoenix had hired a team of searchers, genealogists, and attorneys to track down potential heirs to old owners (tracing titles forward from origin rather than from the present back through time to avoid state claims, and admittedly some bugs along the way). ) and purchased claims for any peak shares. With those deeds in hand, Phoenix reached out to the parish appraiser and requested a redraw of the tax card to consolidate the seven lots in question with other lots that Phoenix owned and were to be assessed for (with the exception of one lot for which it could not win any distance). Color of title requested by the President of Phoenix).
The township – glad to re-classify the land as taxable – did so, removing the boundaries of state-owned parcels while collecting taxes instead of taxes from New Jersey state, while collecting taxes from Phoenix. Neither the appraiser nor Phoenix notified the state of any changes to tax cards or tax assessment roles. Instead, New Jersey found out about them through a local resident who wrote to the state that the development of a waterway through Phoenix sparked its own investigation into Phoenix’s actions that may affect its own private rights.
State witnesses in court included a number of retired employees who had worked on the transactions 25-30 years earlier and could provide no more than general information about the state’s land acquisition process, which includes title research, evaluations and surveys. But there was plenty of past and current know-how on the state of the country. An appraiser pointed to discrepancies between calls for acts and coordinates in Phoenix’s deeds. An expert found that due to errors in the tax allocation, a lot was created that was really part of state property – the Phoenix expert agreed.
Other questions arose. Could foreclosure on an adjacent community tax certificate transfer a title in Little Egg Harbor? Does the inclusion of a deed in the wrong district provide timely notification to subsequent buyers? If a deed states four times that it is transferring only ten acres, but repeats a description of 150 acres from the deed to the testator, what is really transferred? What actions are sufficient to prove actual possession, and how does peaceful possession differ from the detrimental use of someone else’s property?
Title insurance proved useless. One of the title companies that insured the state’s interests in three properties defended the state for two years before making the business decision to pay policy caps to everyone to end its responsibilities. Another did the same for the one package it insured. The third, which insured the last three packages for the state, also insured Phoenix’s competitive title on all seven lots.
If that sounds confused, it is. But the case provides a good number of illustrations of the importance of understanding both the title and the principles of surveying, and how they work together. It also shows how difficult it is to clear up the court through deeds, titles, and surveys. The reasoning and decisions of the lower court are extremely frustrating.
Fortunately, the Supreme Court found that Phoenix’s actions were clearly public policy violations, which denied him any appeal to the New Jersey Chancery Court, where land disputes are fair rather than trial. Chancery is where this case began as a title silent action initiated by Phoenix. Appeals and waivers led to this 175-page statement, which examines when justice is appropriate and when it is not.
“… Phoenix researched the state’s titles, ignored its recorded deeds, and secretly acquired hostile interests from the heirs of long-dead record owners in an attempt to undermine the state’s title …” (page 98) Allegation of an attempt to return land to tax Bun was here not the moral high point.
Although not officially published, the case is available online. The full name of the case is Phoenix Pinelands Corporation v Harry Davidoff and others– the list of defendants is about three pages long – issued by the Appeals Department of the New Jersey Superior Court on April 29, 2021