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:
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.
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