This is the fifth episode in our new video series dramatizing encroachments and boundary disputes.  

The prior video covered the criteria for balancing hardships when an owner seeks to terminate an encroachment.

Unreliability of natural markers

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.

Also, 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.

An actual dispute over a boundary’s location need not exist between the owners of adjacent parcels. Instead, owners are to merely be in doubt over the location of the true boundary and agree to the location of the boundary when they set it.

Usually, it is not the original owners who have a dispute over title or possession based on the agreed-to boundary line, it is the later owners.

However, when the boundary line in a recorded deed is readily ascertainable by a surveyor, the description in the record controls, unless the landowner defending the location of the line as the common boundary provides proof the boundary line as located settles an actual, not implied, boundary dispute. [Bryant v. Blevins (1994) 9 C4th 47]

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 would result from the boundary line being moved to the legally described location.

The statute of limitations requires the adjacent owners to resolve a dispute within the five-year period. If 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 if substantial loss will be caused by the movement of the agreed boundary to the true lot line.

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 cannot be used to make lot line adjustments in which adjacent owners move an existing line, the location of which is known to them.