Monday, May 16, 2016

Does my neighbor's fence change our properties' boundaries?

Generally, a property’s boundaries will be accurately set forth on a plat map and described in the deed by which a person acquires his ownership interest in the property. However, from time to time, an unusual circumstance, such as a faulty survey, a typographical error in a legal description, or a trespassing fence, will cause a dispute between neighbors about the precise location of a boundary. There are three boundary dispute doctrines recognized by Utah courts that can change a boundary from its original location without the formal purchase of land or adverse possession: boundary by acquiescence, boundary by estoppel, and boundary by agreement.  

Boundary by estoppel and boundary by agreement will be discussed in subsequent blog posts.

Boundary by Acquiescence Generally

 “The elements of boundary by acquiescence are (i) occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary, (iii) for a long period of time, (iv) by adjoining landowners.” Jacobs v. Hafen, 917 P.2d 1078, 1080 (Utah 1996).  In essence, a boundary by acquiescence prevents an accepted boundary from being disputed after that boundary had been recognized for many years.  The requirements for a boundary by acquiescence are not in place to help a person steal part of a neighbor’s property.  Rather, boundary by acquiescence is recognized by Utah courts to allow a person to trust that long-recognized boundaries are accurate.

Mutual Acquiescence

In a lawsuit about boundary by acquiescence, one party will almost certainly argue that he never agreed to the marked boundary.  In many circumstances, an expressed acknowledgment with positive evidence is necessary to a legal claim.  However, mutual acquiescence in a boundary by acquiescence claim can be established if “there was no indication in the record that [the landowner or] any predecessor in interest behaved in a fashion inconsistent with the belief that the fence line [or other marking] was the boundary.” RHN Corp. v. Veibell, 2004 UT 60, ¶ 26 (Utah 2004).  Mutual acquiescence can be presumed unless a landowner takes an affirmative step to protect his boundary.

Long Period of Time

The requirement that mutual acquiescence be for a long period of time has been interpreted in Utah to mean at least twenty years. See Jacobs v. Hafen, 917 P.2d 1078, 1080 (Utah 1996); also see Hobson v. Panguitch Lake Corp., 530 P.2d 792, 795 (Utah 1975).  Other legal theories, such as adverse possession, have shorter time period requirements.  If a boundary has been marked for less than 20 years, then a boundary by acquiescence cause of action will not succeed, but another legal theory may still allow the boundary to be changed.   Additionally, the legal standard of "at least 20 years" does not mean that 20 years is automatically long enough to support a boundary by acquiescence claim.
While 20 years or more may seem like an unreasonably long period of time, this length helps boundary by acquiescence remain as a sword for and not a shield against justice.  Without a length requirement, an aggressive neighbor could more easily abuse a timid neighbor with encroaching construction.  Conversely, if boundary by acquiescence was never recognized, then a court would be left to undo long-accepted boundaries, sometimes with considerable improvements over the boundaries and even when the original neighbors may no longer be available to explain why the particular boundary was recognized.
Reformation of Deed
            A successful boundary by acquiescence claim generally indicates that the deeds under which each neighbor acquired his real property interest are inaccurate.  The court will therefore reform those deeds based on the mutual mistake in the legal descriptions.  See RHN Corp. v. Veibell, 2004 UT 60, ¶ 35 (Utah 2004).  “Reformation of a deed” basically requires the court to rewrite the deed to indicate the actual intentions of the parties.

“Reformation of a deed is a proceeding in equity.” Hottinger v. Jensen, 684 P.2d 1271, 1273 (Utah 1984).   Because reformation requires equity, the door may be open for a third-party, such as a lender, to intervene and argue against boundary by acquiescence if the reformation would substantially impair that third-party’s rights (although a lender could not have received more rights than the borrower possessed).

For more specific information about this particular subject, please call my office at 801-691-7770 for a free consultation or see the following web pages:
1.                     Whiting& Jardine, LLC Home Page
2.          Boundary Disputes
3.          Quiet Title

Disclaimer: This blog is for general information and educational purposes only.  Nothing in this blog should be construed as legal advice for any particular situation.  The statements in this blog may be generalized, contain speculation, be based on opinion, or be made inaccurate by updates or clarifications to the law.  No attorney-client relationship is created by virtue of this blog.  To receive competent legal advice for your situation, you should seek competent, licensed legal counsel in the appropriate jurisdiction and practice area.