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Friday, July 11, 2014

Bad Fences...

For many years a large chain-link fence has separated a public housing project in New Haven, Connecticut, from a more affluent neighboring town, Hamden.  New Haven “discovered that the fence, long assumed to sit on Hamden property, actually was built on land owned by New Haven.  That allowed New Haven to tear down the fence without Hamden’s approval.”  (NYT, 7/12/14).

But what about adverse possession?  One answer is that New Haven has governmental immunity.  “A public entity may claim immunity from adverse possession, however, only to the extent that the property against which a claim has been asserted is held for public use.” American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 77, 574 A.2d 796 (1990).  Public housing is public use.

Don’t be fooled by the word “use.”  In this context, it must mean a purpose, not actual or active use.  If New Haven was actually using the land under the fence, Hamden wouldn’t have been able to establish the elements of adverse possession and no governmental immunity would have been necessary.

Posted by Fredrick Vars on July 11, 2014 at 12:34 PM | Permalink

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