This is the first episode in our new video series covering common boundary improvements. This episode depicts types of common boundary improvements, and comments on the rights of adjacent property owners when setting up, maintaining or removing common boundary improvements.
Common boundary improvements
Most properties have three property lines setting the common boundary with adjacent properties owned by others. A fourth property line usually sets the frontage on a public right of way, such as a street.
The location of the common property lines might be represented by an improvement which acts as a demarcation of the property line, called a common boundary improvement.
A common boundary improvement may be a:
- party wall;
- boundary fence;
- tree line;
- driveway; or
- ditch.
Prospective buyers interested in a property are concerned about:
- the ownership of any common boundary improvements; and
- who is responsible for their maintenance.
The rights of the adjacent property owners when setting up, maintaining or removing common boundary improvements depend on the type of improvement which exists.
Setting boundaries
Boundaries between parcels of real estate are set out by a survey and recorded as the legal description of each parcel. When the boundary line in a recorded deed is readily ascertainable by a surveyor, the description in the record controls.
However, uncertainty over the exact location of a boundary line may arise in a number of circumstances. For example, where natural markers, such as trees, boulders or a creek, were used to mark a boundary line, the location of the markers may have changed or disappeared over time.
Section posts and other surveyor’s monuments which indicate boundary lines are also subject to earth movement, climatic changes and human activity. Additionally, the legal descriptions for parcels of real estate may be conflicting or simply fail to correctly set a boundary line, or may not coincide with another line or boundary.
Doctrine of agreed boundaries
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, commonly referred to as the agreed-boundary doctrine, 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]
Related article:
Agreeing to the boundary
Once owners of adjacent properties uncertain over the true boundary agree to establish the location of their common lot line, the location they set replaces the legal line provided either:
- a five-year statute of limitations has run; or
- a substantial loss might result from the boundary line being moved to the legally described location.
For example, two farms are operated on adjacent parcels of real estate. When the parcels were originally surveyed decades earlier, the federal government placed a five-inch section post to mark the boundary line. The neighbors search but cannot locate the section post to help them set their property lines. Instead of surveying their parcels, they mutually erect a fence intending it to set the boundary between their properties.
The fence is eventually taken down, but the owners continue to farm up to the spot where the fence had been located.
Over five years later, each owner sells their respective property to different buyers. The new buyers continue to farm their parcels within the parameters set by the original owners.
Later, one of the new owners surveys their parcel which reveals the owner’s neighbor has been farming 2.5 acres on their side of the property line described in the public records.
The owner sues to quiet title and reclaim possession to the 2.5 acres. The neighbor claims the fence line became the boundary line when the original owners set the fence as the property line between the adjacent parcels.
Is the fence line the true boundary line?
Yes! When the owners of adjacent real estate are uncertain where their boundary is located, they may agree to set a new boundary line.
Further, the agreed-to boundary which remains in place for more than five years is binding on subsequent owners even though the recorded legal description is different. [Joaquin v. Shiloh Orchards (1978) 84 CA3d 192]
Agreement to make certain
An agreement to mark a boundary line may be oral, written or result from the conduct of neighboring property owners.
Oral or written agreements on the boundary’s location are called express agreements since they are not implied.
Written agreements are the most effective type of express agreement since they formally document the mutual intentions of both owners. However, they usually exist only in the case of a lot line adjustment map. Unlike the conveyance of real estate, owners do not have to put their boundary agreement in writing for it to be enforceable.
With the setting of an agreed boundary, neither owner is conveying real estate to the other. Instead, the owners are agreeing to what land constitutes their own property. [Young v. Blakeman (1908) 153 C 477]
The element of duration
Owners need to acquiesce to the agreed boundary for a period of at least five years. This five-year period is the statute of limitations for the recovery of real estate. [Calif. Code of Civil Procedure §318]
The statute of limitations requires the adjacent owners to resolve a dispute within the five-year period. When disputes are not settled within this period, the claims are put to rest. Thus, an owner who fails to object to a boundary dispute during the statute of limitations period is presumed to have agreed to the boundary set by the adjacent property owner.
However, an exception to the five-year rule arises when substantial loss will be caused by the movement of the agreed boundary to the true lot line.
For example, when an adjacent owner builds improvements near the line established in reliance on an agreement that it is the boundary, the new boundary is allowed without the enforcement of the five-year period. However, the new boundary is only allowed when the adjacent owner can show that moving the boundary will result in substantial loss due to the existence of improvements. [Roman v. Ries (1968) 259 CA2d 65]
Marking the line
When a writing setting the boundary is not available, subsequent owners need to look to the prior owner’s activities for an implication that an agreement existed as to the location of the boundary line.
For example, the construction of a fence may imply an agreement to set a boundary. However, in order for the fence to control in an agreed-boundary dispute, the owner relying on the fence as a boundary needs to present evidence to show the fence was erected to resolve a boundary uncertainty known to previous owners.
For example, a fence is erected between two parcels of real estate by the owners of the parcels. Both parcels are sold 20 years later.
The new owner of one of the parcels commissions a survey. The survey reveals the 20-year old fence dividing the owner’s property and the neighboring property is not in the correct location.
The owner builds a new fence on the actual boundary line located by the survey.
The neighbor then seeks to remove the new fence and obtain possession to the real estate up to the old fence line. The neighbor claims the agreed-boundary doctrine sets the boundary at the original fence line since the fence existed for 20 years without dispute.
The owner claims the agreed-boundary doctrine does not apply since the previous landowners did not agree to erect the fence based on any uncertainty as to the location of the true boundary.
Can an agreement be implied to set the boundary line at the old fence?
No! The mere acquiescence to the placement of a fence, absent evidence of uncertainty and an agreement to resolve the uncertainty, is not enough to establish a boundary under the agreed-boundary doctrine. [Mehdizadeh v. Mincer (1996) 46 CA4th 1296]
Fences are built for a variety of reasons, one of which is to establish a boundary. Other reasons for erecting fences include controlling animals, aesthetics or to prevent children from wandering off a property.
Further, the location and condition of a fence may be influenced by the topography of the property, the terrain on which it is placed, requirements of an animal enclosure or the loss of lateral and subjacent support. [Bryant, supra]
While a fence or wall is evidence of a line for something, a fence does not necessarily set the property boundary.
Limitations of the doctrine
The agreed-boundary doctrine has limitations. The doctrine cannot be used to convey property. Further, the agreed-boundary doctrine can only set a boundary, the exact location of which is unknown to the adjacent owners without a survey or litigation.
Any attempt to convey a portion of a lot to the owner of an adjacent property by use of the agreed-boundary doctrine violates the statute of frauds which requires a writing documenting the intent to convey land. Thus, the agreed-boundary doctrine may not be used to make lot line adjustments in which adjacent owners move an existing line, the location of which is known to them.
