When parties purchase property in the United States, they usually enter into a contractual transaction wherein the buyer tenders money in exchange for the title of a particular agreed-upon portion of land. Sometimes, however, due to human error a party may find that the description of the borders of the land purchased does not match what appears physically to be the borders of the property. It is in this context, and others like it, that the legal doctrine of “boundary by acquiescence” may come into play.
An example can help illustrate. A legal description may indicate that the border of certain property is exactly 150 feet squared, but a survey shows that the fence dividing the property from adjacent property is at the 147-foot mark and has been that way for 30 years. Apparently, the adjoining property owner placed a fence 3 feet across the property line by mistake decades ago. There are several options in these circumstances if there is an ensuing dispute about the property line. Among other things, the fence could be torn up and moved back the 3 feet that it is encroaching onto the adjacent property, or the 3-foot strip could be purchased as between neighbors. But this requires willing and friendly neighbors – which is not always the case. So if the parties cannot amicably resolve the issue, the legal doctrine of “boundary by acquiescence” may come into play. This doctrine says the property line is where the parties have acted like it is for a long period of time.
This article will explain the doctrine of boundary by acquiescence that has been used in the United States for over a hundred years to resolve boundary line disputes when there have been longstanding boundary markers and implied agreement between property owners based on those markers as to what the true property line is or should be.
Boundary by acquiescence in most states in the U.S. is a product of the common law, which is generally applied law derived from judicial decisions with no statutory elements. The basis for establishing land boundaries by acquiescence is said to be an implied or tacit agreement. “Tacit” means implied by silence, or silent passive acceptance, implied by circumstances, in the absence of an express agreement. In the context of our discussion, a boundary may be established between property owners because each acquiesced to a marker dividing their property over a long period of time, even if the marker did not accurately depict the original property line.
A legal action invoking boundary by acquiescence may resolve boundary line disputes where it would be inequitable to allow an owner to change the boundary that has been recognized by both owners for many years. In other words, boundary by acquiescence is used to give property owners what they see, reasonably perceive, and understand to be the real property as established by longtime usage and tacit understanding between adjoining landowners.
Within the case law of most state courts in the United States, the basic elements of a claim for boundary by acquiescence are as follows:
1) The existence of a dispute from which it can be concluded that both parties are in doubt as to the location of the true boundary;
2) A continued occupation and acquiescence in a line other than the true boundary; and
3) Use of the property for a period of time that is more than the governing statutory period required for adverse possession. (Adverse possession is a legal doctrine in the United States that allows one who possesses land adversely to the true owner for a lengthy period of time to come to own the land.)
As more cases regarding boundary disputes have been brought before the various state courts, the elements that need to be satisfied have become more refined in accordance with the needs and opinions of each state. The time periods involved can vary quite a bit from state to state. For example, in the state of Georgia the time period is 7 years for an acquiescence to be established, whereas in Iowa it is 10 years, in Michigan it is 15 years, and in Delaware it is 20 years. Some states do not define it by a period of years: they may say it is a “long period of time” or a “considerable period of time,” with what exactly that means being the subject of litigation and judicial determination. As stated above, most of the states refer to the statutory period under the state’s adverse possession statute.
An example from one state will illustrate how the courts may approach the subject. In the state of Utah, the elements of boundary by acquiescence have been established by judicial opinion. Based on a case issued by the Utah Supreme Court in 2016, the following elements are required to establish a boundary by acquiescence in Utah: (1) a visible line on the ground marked by monuments, fences, buildings, or natural features; (2) the claimant’s occupation of his or her side of the visible line, right up to the visible line, in a way that would give a reasonable adjoining landowner notice that the claimant is using the line as the boundary between their two parcels; (3) mutual acquiescence in the line as the boundary by the adjoining landowners; (4) for an uninterrupted period of at least 20 years. This article will examine each of these elements in more detail next.
Visible Line Marked by Monuments, Fences, or Buildings
The suggested boundary must be definite and certain. It must be open to observation and there can be no guessing involved as to what determines the boundary line. A monument must be a tangible landmark to indicate a boundary. Monuments are usually a long metal spike with a rounded head that is pounded into the ground where a line could be drawn between two of them laying out a specific portion of the boundary. The rounded head usually has information inscribed on it identifying the monument’s purpose. Other items could be a wall or fence or shrubbery placed along the boundary. In some cases, homes or buildings mark the boundary of the property. Fences need to be permanent and not moveable or temporary such as those used to control livestock. As long as there is a visible line that is treated as the boundary, an acquiescence claim could meet this element.
Occupation Up to a Visible Line
This element requires either actual or constructive occupation and use of the area in question. Some examples of actual occupation include land where houses or other structures are built and used, land that is farmed or land used to raise livestock. Occupation must be part of a normal pattern that is appropriate for the character and location of the land.
The purpose of this element is to show that the owners have knowledge of the conditions and activities which might alter the ownership rights in the property, so that if a fence is being put up, they would reasonably know about it and stop it if they object. “Constructive occupation” occurs when a property owner has knowledge of the conditions prevailing on the property, such as property owners who have someone who can give them updates as to what is going on or an owner who visits the property on a regular basis.
Mutual Acquiescence in the Line as a Boundary and by Adjoining Landowners
Under this element, two requirements need to be met. First, both parties need to recognize that there is a specific line; and second, both parties need to acknowledge the line as the boundary separating both properties. To determine if the landowners meet the requirements, the court may look at the history and usage by the landowners. Because the acquiescence could be implied or inferred by the other owner’s actions, it is unnecessary to show both owners explicitly agreed that the line was to be the property boundary. Even silence and inaction may be evidence of acquiescence, but silence and inaction alone are not enough to establish mutual acquiescence. Also, the mere fact that a fence has been put up and neither landowner does anything about it for many years does not establish the fact that it is the true boundary. Should one of the property owners be a corporate entity, the court would look at the actions and knowledge of those in positions of responsibility rather than the common employee. In order for mutual acquiescence to be determined, both landowners must be shown to have knowledge of the existence of a line that represents the boundary of the properties.
Another important requirement to this element is the fact that the boundary line must be separating landowners whose property meets along that same line as the boundary in question. A disputant cannot argue about a boundary, for example, if the land meets only at the corner of one of the properties. This element requires that the adjoining landowners share a common boundary along the entire length of the relevant disputed boundary.
For a Long Period of Time
As stated above, most states use the length of time for adverse possession in their state to determine the period of time for boundary by acquiescence. However, some states are an exception, and Utah is one of those states. In Utah, a successful claim must have all of the elements in place continuously for a period of at least 20 years. This 20-year period has been determined by judicial opinion as a lengthy enough period to constitute a showing of acquiescence on both sides, without reference to the adverse possession statute. Once this time period has passed, and all of the other elements have been established, the operation of the doctrine of boundary by acquiescence cannot be overturned by any subsequent discovery of the true record boundary by one of the landowners. This means that the disputed property becomes part of the legal title according to law, terminating the other landowner’s legal title to that portion of land.
The actions of previous owners may have already established a boundary by acquiescence, where owners who purchase the land later may be unable to correct the boundary if they identify the correct boundary upon purchasing the property in good faith.
In sum, should a U.S. property owner have an issue with the proper placement of the boundary line when there have been longstanding boundary markers accepted by adjoining landowners, the doctrine of boundary by acquiescence may come into play. Remember, when dealing with property boundary line dispute issues in the United States, it is always wise to consult an attorney who can help. The legal doctrine of boundary by acquiescence is one tool that attorneys and courts in the U.S. use to resolve boundary line disputes.