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.

Can the government give your land to a third-party?

The Kelo Controversy

            Since the Kelo case, the issue of whether the government can condemn one person’s property on behalf of a third-party has been a hot-button legal issue. See Kelo v. City of New London, 545 U.S. 469 (2005).  Proponents of the Kelo decision believe that enlarging the eminent power to allow the government to take property and convey that property to a third-party empowers the government to promote the general welfare and development of society.  Opponents of the Kelo decision believe that this sort of government taking tramples on individual liberty and functions as a Bizarro-Robin Hood – taking from the poor and giving to the rich.

Utah’s Third-Party Eminent Domain Laws

            Several states, including Utah, have weighed in on the issues posed by Kelo with new statutes and case law.    Utah passed a new eminent domain bill with specific requirements that must be followed to exercise eminent domain powers.  See Utah Code §78B-6-501 et seq.  Also, Utah courts have come down on the side of requiring the government to maintain control of any property condemned through eminent domain.

There are two Utah cases that show how much control must be maintained by the condemning entity.  In the first case, Provo City wanted to build a road across unincorporated land, but this land was not within Provo (Note: eminent domain powers in regards to condemning boundaries outside of a city’s limits have subsequently been enlarged). After the courts determined that Provo City could not use eminent domain to seize this land, Provo City entered into a deal with Utah County by which Utah County would condemn the property, Provo City would pay for the road’s construction, and Utah County would own the property.  The landowner challenged the condemnation with an argument that Utah County cannot use eminent domain on behalf of Provo City.  The Utah Supreme Court ruled that neither Utah County nor Provo City acted outside of its authority and that the land was legitimately taken for the public use of building a road. The fact that Provo City wanted and paid for the road was of no importance, so long as Utah County took and maintained control over the condemned property.  Utah County v. Ivie, 2006 UT 33 (Utah 2006).

In the second case, Salt Lake City needed to acquire a piece of land owned by Rocky Mountain Power.  Salt Lake City was concerned about whether it could condemn a piece of property already set aside for public use, so Salt Lake City entered into a deal in which it would condemn another piece of property and trade the new property to Rocky Mountain Power in exchange for the piece of land currently owned by Rocky Mountain Power.  In this case, the Utah Supreme Court determined that Salt Lake City was acting outside of its eminent domain powers.  Salt Lake City would not directly own the condemned property, develop the condemned property, and directly have a public use for the property (even though Rocky Mountain Power would provide a public use for the property).  In order to exercise eminent domain authority, the condemning government must actually be the party taking and controlling the seized property.  See Salt Lake City Corp. v. Evans Development Group, LLC, 2016 UT 15 (Utah 2016).

Potential for Future Eminent Domain Issues

While the recent Evans Development Group decision curtails the ability of the government to take property on behalf of a third-party, the door is still open for creative government officials to try to structure deals within the guidance provided by the court.  Though the Kelo decision favors broad government powers under the United State Constitution, Utah’s eminent domain statutes still raise substantial hurdles to overcome before the government can condemn property for a third-party.

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: www.WhitingJardine.com

2.                     Eminent Domain: http://whitingjardine.com/practice_areas.php?part=eminent

3.                     Land Use and Zoning: http://whitingjardine.com/practice_areas.php?part=zoning

4.                     Easements: http://whitingjardine.com/practice_areas.php?part=easements

5.                     Quiet Title: http://whitingjardine.com/practice_areas.php?part=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.

How can an out-of-state person defend himself in a Utah court?

Utah Law on Court Appearances Generally

            In order to participate in the legal process, a party must attend the hearings in front of the court.  A party may choose to either attend personally or to have an attorney attend on behalf on that person.  An entity that is not a natural person, such as a limited liability company, a corporation, or a real estate trust, is unable to attend personally and must have an attorney appear on its behalf (except in very narrow circumstances).  

Having a Friend or Family Member Appear

           Out of state parties sometimes request that friends or family appear on their behalf.  Appearing on behalf of another person in court is generally considered to be the practice of law.   With limited exceptions,  a non-attorney “individual may not practice law or assume to act or hold himself or herself out to the public as an individual qualified to practice law[.]”  Utah Code §78A-9-103(1).  The appearance by a family or friend on a party’s behalf could very likely be treated as a non-appearance by the party.   Also, having a non-attorney appear on a party’s behalf could theoretically get the appearing person in a legal predicament for practicing law without a license (though I have never personally seen the appearing person receive more than a stern rebuke).

Appearing through Electronic Means

       "In the judge's discretion, any hearing may be conducted using telephone or video conferencing.”  Rules of Judicial Administration 4-106(1).  Through a motion, an out-of-state party may petition the court to appear via telephone or video conference.  Some judges are more open to this method of appearance than others.  The court’s discretion should factor in that the rules should “be liberally construed and applied to achieve the just, speedy, and inexpensive determination of every action.” Utah Rules of Civil Procedure 1.  Allowing the a party to appear electronically weighs the difficulties and costs imposed on out-of-state parties with the disruption to the proceedings caused by one party not being physically present.  Judges have broad discretion on how to conduct hearings and trials, so whether or not a party would be allowed to appear by electronic means would largely depend upon the judge's preferences.

Conclusion

            For an out-of-state party, having an attorney appear on its behalf can avoid most issues.  If hiring an attorney is not possible, the party may petition the court to appear via electronic means, but the party cannot assume that the court will grant that request.  An out-of-state party may be required to appear in person.

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:

Whiting & Jardine, LLC Home Page: www.WhitingJardine.com

 Litigation: http://whitingjardine.com/services.php?part=litigation

Appeals: http://whitingjardine.com/services.php?part=appeals

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.

Can an unlicensed contractor collect money for its work?

Recovery Generally Barred for Unlicensed Contractors

In Utah, “[n]o contractor may...commence or maintain any action...for collection of compensation for performing any act for which a license is required...without alleging and proving that he [or she] was a properly licensed contractor when the contract sued upon was entered into, and when the alleged cause of action arose.” Utah Code Ann. § 58–55–604.  An unlicensed contractor may receive voluntary payments for the work he performs, but he generally is not allowed to use the legal system to compel payment.  This statutory bar against suing for payment is a codification of prior common law.  It extends to all causes of action that could be used to try to collect, including quantum meruit claims and lien foreclosure actions. 

Purposes of Licensing

“Licenses are required basically for one of two purposes: to protect the public against fraud, incompetence, illegality, or irresponsibility; or to solely or primarily raise revenue.”  Fillmore Products, Inc. v. W. States Paving, Inc., 561 P.2d 687, 689 (Utah 1977).  According to Utah courts, unqualified contractors place the property, financial well-being, and even the lives of the public in peril. The requirement of a contractor to be licensed exists to protect the public. The prohibition of unlicensed contractors from suing to collect payment is meant to prevent an unlicensed contractor from illegal providing services and adds to the “other penalties imposed against him expressly by statute including criminal sanctions.”   Id.

Exceptions Allowing Recovery

Prohibiting an unlicensed contractor who provided good work from getting paid is a harsh sanction.  Because it is so harsh, Utah courts have recognized “common law exceptions to the general rule of non-recovery.” Govert Copier Painting v. Van Leeuwen, 801 P.2d 163, 169 (Utah Ct.App.1990).  “The Utah Supreme Court has allowed an unlicensed contractor to recover “from one who is otherwise protected from the harm the licensing requirements were designed to prevent[.]” Govert Copier Painting v. Van Leeuwen, 801 P.2d 163, 170 (Utah Ct. App. 1990) “In order to recover on its contract claim, [an unlicensed contractor] must demonstrate that despite its failure to have a contractor's license, the purpose of the licensing statute was met—the protection of the public.”  Id.  Presently, Utah appellate courts have recognized four circumstances in which an unlicensed contractor may sue to collect payment:

1.      “First, unlicensed contractors have been allowed to recover when the party for whom the work is to be done possesses skill or expertise in the field…

2.      Second, an unlicensed contractor may recover if the work it performed was supervised by a licensed contractor…

3.      Third, if the reason a contractor fails to obtain proper licensure is minor and does not undermine its ability to perform its work, the unlicensed contractor may recover…

4.      Finally, courts have considered whether the contracting party relied on the subcontractor's representations that he was properly licensed and whether the subcontractor has posted a performance bond.”  A.K. & R. Whipple Plumbing & Heating v. Aspen Const., 1999 UT App 87, ¶¶ 13-20, 977 P.2d 518, 522-24

Other circumstances may allow an unlicensed contractor to sue to collect payment.  For example, other jurisdiction have dealt with the issue of persons who specifically hire unlicensed contractors with no intention of ever paying the unlicensed contractors.  For an exception to apply to the general rule of non-recovery, it is not enough for a contractor to show that he provided good work, even if he disclosed that he was not licensed.  The contractor must demonstrate that the public was protected against possible the dangers of hiring an unlicensed contractor.

As always, if you have any questions about your situation, you are welcome to contact one of Whiting & Jardine’s real estate lawyers for legal advice.

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: www.WhitingJardine.com

2.                  Construction Law: http://whitingjardine.com/practice_areas.php?part=construction

3.                  Collections: http://whitingjardine.com/practice_areas.php?part=collections

4.                  Liens: http://whitingjardine.com/practice_areas.php?part=liens

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.

Can I be defrauded because someone failed to disclose information?

Can I Be Defrauded because someone failed to disclose information?

Utah Disclosure Law Generally

In general, there is no liability for not disclosing information to another party.  People often believe they have been defrauded when information has not been disclosed, but the term “fraud” in law has a different meaning than its colloquial use and generally requires an affirmative misrepresentation.  “A person who possesses important, even vital, information of interest to another has no legal duty to communicate the information where no relationship between the parties exists.” Yazd v. Woodside Homes Corp., 2006 UT 47, ¶17 (Utah 2006).  Simply failing to disclose information is not normally enough to create a cause of action. 

However, there are some important exceptions to this general rule.  For example, a person may be sued for fraudulent non-disclosure, for breach of a fiduciary duty to disclose, or to reform a contract based on a unilateral mistake.

Fraudulent Non-Disclosure

“To prevail on a claim [for] fraudulent nondisclosure, a plaintiff must prove by clear and convincing evidence that (1) the defendant had a legal duty to communicate information, (2) the defendant knew of the information he failed to disclose, and (3) the nondisclosed information was material.” See Anderson v. Kriser, 266 P.3d 819 (Utah 2011).

Information is said to be material if it is “of such a nature that knowledge of the item would affect a person’s decision-making[.]”  Black’s Law Dictionary pg. 998.   Standards of materiality may shift in different types of transactions, particularly if the standards are based on regulations or statutes specific to a profession.

Who was required to make the disclosure?

For many fraudulent non-disclosure claims, the first element requiring a duty to disclose is the most difficult hurdle to overcome.  Different people have different disclosures obligations, and understanding the obligation to disclose is usually tied to determining the type of relationship that exists between the parties.

In many fraudulent non-disclosure claims, the non-disclosure is tied to a fiduciary duty to disclose (as well as to a breach of fiduciary duty case of action).   Fiduciaries, such as lawyers and real estate agents, have the highest disclosure obligations.  A fiduciary has a duty to pursue his client’s best interests, which interests often require the disclosure of information.

In a seller-purchaser relationship, the seller only has the obligation to disclose information that is known to the seller and which, for the buyer, is “not discoverable by reasonable care.”  Mitchell v. Christensen, 2001 UT 80, ¶11 (Utah 2001) [quoting First Security Bank of Utah v. Banberry Development Corp., 786 P.2d 1326, 1331 (Utah 1990].  Even with this higher standard, to prevent potential litigation, sellers of real estate are encouraged to provide a broad disclosure form.

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: www.WhitingJardine.com

2.      Litigation: http://whitingjardine.com/services.php?part=litigation

3.      Sales & Purchase Agreements: http://whitingjardine.com/practice_areas.php?part=purchase

4.      Transactions: http://whitingjardine.com/services.php?part=transactions

5.      Contract Negotiation and Drafting: http://whitingjardine.com/practice_areas.php?part=contract

6.      Fiduciary Duty Litigation: http://whitingjardine.com/practice_areas.php?part=fiduciary

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.

Have I been defrauded?

Common Definition of Fraud

Most people view fraud as “an act of deceiving or misrepresenting.” See http://www.merriam-webster.com/dictionary/fraud. This colloquial use of the term “fraud” causes many people to believe that if someone said something that is untrue, then that person has committed fraud.  The term “fraud,” as a legal term, is much narrower than this common understanding.

Legal Definition of Fraud

In order for fraud to exist legally, then the elements of a fraud cause of action must exist.  “The elements of an action in deceit based on fraudulent misrepresentation are: (1) a representation; (2) concerning a presently existing material fact; (3) which was false; (4) which the representor either (a) knew to be false, or (b) made recklessly, knowing that he had insufficient knowledge upon which to base such representation; (5) for the purpose of inducing the other party to act upon it; (6) that the other party, acting reasonably and in ignorance of its falsity; (7) did in fact rely upon it; (8) and was thereby induced to act; (9) to his injury and damage.” Dugan v. Jones, 615 P.2d 1239 (Utah 1980).  For fraud to exist legally, it is not enough for a statement to be false.  There must be both an intent to deceive and damages cause by reliance on the false statement.

Even if all the elements of fraud are not met, there may be alternative but similar legal theories that could be proven, such as claims for negligent misrepresentation or fraudulent non-disclosure.

Proving Fraud

“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Utah Rules of Civil Procedure 9(b).  For fraud to be properly alleged with particularity, Plaintiff “must state with particularity the circumstances supporting each element of fraud.” Otsuka Electronics v. Imaging Specialists, et al., 937 P.2d 1274, ¶24 (Utah Ct. App. 1997).  Sometimes, a plaintiff may not know whether each element of fraud can be proven at the time of a lawsuit is filed.  If he has a good faith basis to believe that an element has been met, he can allege the facts that would satisfy each element “upon information and belief.”

Most parties do not simply admit to committing fraud.  Extrinsic evidence may be used to prove each element.  For example, while a defendant may claim not to have known that a representation was false, extrinsic evidence can refute the defendant’s claim.

Many fraud cases involve real estate deals.  The language in the related contracts and deeds is often the best indication of whether fraud occurred.

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: www.WhitingJardine.com

2.      Litigation: http://whitingjardine.com/services.php?part=litigation

3.      Sales & Purchase Agreements: http://whitingjardine.com/practice_areas.php?part=purchase

4.      Transactions: http://whitingjardine.com/services.php?part=transactions

5.      Contract Negotiation and Drafting: http://whitingjardine.com/practice_areas.php?part=contract

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.

Can I acquire real property through a constructive trust?

What is a Constructive Trust?

A constructive trust is an implied trust created by a court when the transferor of land intends for the transfer to benefit someone other than the transferor or the transferee.  “It is not a ‘trust’ according to the common usage of that term.  Rather, it requires one party to transfer property to the party who was intended to benefit from the property. A constructive trust is an equitable remedy which arises by operation of law to prevent unjust enrichment.”  Ashton v. Ashton, 733 P.2d 147, 150 (Utah 1987).

Circumstances Justifying a Constructive Trust

The Utah Supreme Court has indicated that constructive trusts are appropriate (1) in order to give effect to oral trusts which have not been reduced to a writing and may not survive the statute of frauds, and (2) when a party has an equitable duty to convey land to another.   The Utah Supreme Court also provided the following instructions about creating constructive trusts:

“We have recognized that constructive trusts may be imposed in the circumstances set forth in section 45 of the Restatement (Second) of Trusts (the “Restatement of Trusts”).

This section applies:

(1)   Where the owner of an interest in land transfers it inter vivos to another in trust for a third person, but no memorandum properly evidencing the intention to create a trust is signed, as required by the Statute of Frauds, and the transferee refuses to perform the trust, the transferee holds the interest upon a constructive trust for the third person, if, but only if,

(a) the transferee by fraud, duress or undue influence prevented the transferor from creating an enforceable interest in the third person, or

(b) the transferee at the time of the transfer was in a confidential relation to the transferor, or

(c) the transfer was made by the transferor in anticipation of death.

In short, the imposition of a constructive trust under this section of the Restatement of Trusts requires proof that the transferor of land intended to create a trust and that one of the three identified circumstances existed at the time of the transfer. And where proving this intent will be contrary to an otherwise valid deed, the evidence of the trust must be clear and convincing.”  Rawlings v. Rawlings, 240 P.3d 754, 763 (Utah 2010).

Situations involving constructive trusts are often tied to other issues such as contract reformation, the statute of frauds, and fiduciary duty litigation.  Constructive trusts are complex.  An attorney should be consulted before trying to create a constructive trust.

            As always, if you have any questions about your situation, you are welcome to contact one of Whiting & Jardine’s real estate lawyers for legal advice.

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: www.WhitingJardine.com

2.                  Quiet Title: http://whitingjardine.com/practice_areas.php?part=quiet_title

3.                  Sales & Purchase Agreements: http://whitingjardine.com/practice_areas.php?part=purchase

4.                  Transactions: http://whitingjardine.com/services.php?part=transactions

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.