This is the sixth episode in our new video series dramatizing encroachments and boundary disputes.
The prior video covered uncertainty over the exact location of a boundary line when natural markers used to set the line change or disappear over time.
No ascertainable boundary line
Absent an ascertainable location of a boundary line, the agreed-boundary doctrine sets the parameters for the boundary between adjoining parcels.
To establish a boundary line under the agreed-boundary doctrine, the following facts need to exist:
- uncertainty as to the boundary’s exact location;
- an agreement between the owners to set the boundary line; and
- acquiescence to the boundary line for a period of at least five years.
Alternatively, when a substantial loss might be suffered due to a change in the location of the boundary line to the legally described location, a new boundary may established under the agreed-boundary doctrine. [Ernie v. Trinity Lutheran Church (1959) 51 C2d 702]
The agreed-boundary doctrine was developed during a time when less advanced surveying techniques occasionally made it too difficult or expensive to locate the boundary line described in the deeds.
Thus, the more practical way to set a boundary line in rural and relatively unpopulated areas was often for owners of adjacent parcels to agree between themselves on the location of a common marker, such as a fence, as the boundary.
Today, surveying techniques are significantly improved. Now, when a deed is clear and a competent surveyor is available, the true boundary line can easily be established and the uncertainty of the boundary’s location is eliminated. Thus, the ancient agreed-boundary doctrine has been reduced to the status of a legal last resort.
In the absence of an oral or written agreement between an owner and their neighbor to set the boundary line at some place other than a documented deed line, the boundary line described in their deeds remains as the boundary. [Armitage v. Decker (1990) 218 CA3d 887]
Consider a parcel of real estate divided into two equally sized parcels by a recorded survey. Later, the owners erect a fence between the parcels which is not located on the recorded common boundary line. Thus, one parcel appears to be physically larger than the other.
Multiple years later, the owner of the smaller parcel sells their land. The new owner hires a surveyor to determine the location of the boundary between the properties.
The survey sets the boundary at the location described in recorded documents. The survey shows the fence is not located on the legally described boundary between the adjacent properties. The new owner of the smaller parcel seeks to recover possession of the land between the fence and the boundary.
The neighboring owner of the larger parcel claims the fence is the agreed boundary since it is reasonable to infer the previous owners agreed the location of the fence to be their common boundary.
The owner of the smaller parcel claims the agreed-boundary doctrine does not apply since a recorded legal description of the boundary is available and the true boundary is known and can be located by a survey.
Is the owner of the smaller parcel correct in relying on the legal description of the property to establish the actual boundary location?
Yes! The doctrine of title by agreed boundaries does not apply since:
- the exact boundary location can be readily located; and
- the owner of the larger parcel defending the fence as the boundary provided no evidence the prior owners were uncertain as to the true boundary description and then, to resolve their uncertainties of location, agreed the fence would mark the boundary. [Bryant Blevins (1994) 9 C4th 47]
Thank you JBStahl. Thanks especially for pointing out that there’s a difference — operationally; in the real world — whether the case arises from the urban environment or out in the sticks.
it should be emphasized that this approach to the “agreed boundary doctrine” is limited to the State of California. The majority of states recognize the adequacy of this doctrine with very different requirements. The statements made of surveying accuracy are misleading as the vast majority of boundaries were created and established when surveying technology lacked today’s standards. Yet, surveyors incorporated the most precise instruments they had available at the time (still the case). Just because a boundary location may be computed precisely, the accuracy of determining the boundary location by an on-the-ground survey still contains flaws that equate to uncertainties.
The example given is an urban environment with modern boundaries in modern subdivisions. The more aged rural environs give rise to imprecise records and ancient controlling monuments that result in uncertainties. The agreed boundary doctrine (in most jurisdictions) simply encourages adjoining landowners to remove the uncertainty, doubt or conflicting evidence by entering into a mutual agreement resolving the uncertainty. It’s a private contractual matter made lawfully to settle the matter without intervention of the government, the courts, or the lawyers. The real issue is that the owners should put their agreement in writing and duly record it in the title record, thereby binding subsequent purchasers as to their agreement and its reasoning. Avoid the controversy by recording a written agreement.