Part 1 of 3: Fences Make Good Neighbors.
Property disputes are common. Unraveling a property dispute, however, can take some fancy footwork and legal wrangling. You have questions, so let me give you a few answers. There are a number of legal avenues to assert rights to property including ownership rights, possession rights, and use rights. I previously wrote about the ownership right established by adverse possession. I will leave possession and use rights for another time. For this article, I will focus on the first of the following three ownership rights: (1) boundary by acquiescence, (2) boundary by agreement, and (3) boundary by estoppel. Any one of these three can establish rights of ownership.
Let’s start with an example to help us flesh out the law: You and your neighbor own adjacent real property. Over the generations that your family has owned the land, you and your family have believed and acted like you owned a bigger tract of land than what your record title shows. It happens all the time. You have used the land for grazing, maintained fences, used portions for hunting pheasants, posted ‘no trespassing’ signs, and let your friends ride dirt bikes on parts of it. You have not, however, paid taxes on the entire portion that you used but it was fenced and you used it up to the fence line. One day your neighbor dies and his heirs have a survey done that shows that you have been trespassing on a substantial portion of the neighbors land all these years. The neighbor politely asks you to stop using the land and starts moving fences. You politely tell him you own it by operation of law and commence a quiet title action to get the title changed into your name. Enter boundary by acquiescence.
Boundary by Acquiescence
To establish a boundary by acquiescence, Utah law requires a claimant to satisfy four elements:
1. Occupation up to a visible line marked by monuments, fences, or buildings;
2. Mutual acquiescence in the line as a boundary;
3. Fulfillment of numbers 1 and 2 above for a period of at least 20 years;
4. Fulfillment of numbers 1, 2, and 3 above by adjoining landowners.
The policy underlying boundary by acquiescence is said to minimize litigation and “promote stability in landownership.” Anderson v. Fautin, 2016 UT 22, ¶ 8, 379 P.3d 1186, 1188.
The doctrine of boundary by acquiescence is not new and has been well-litigated in Utah. Let me give you a few of the contours of the doctrine that may help you in your circumstances:
- “[F]ailure to meet any one of the elements of the doctrine defeats the boundary.”
- Acquiescence may be established by silence. Beware, however, that acquiescence to “use” is not the same as acquiescence to a “boundary.” You need the latter because acquiescence to use alone is not enough. Indeed, “ ‘[a]cquiescence’ is more nearly synonymous with ‘indolence,’ or ‘consent by silence.’ ” See Mason v. Loveless, 2001 UT App 145 and Lane v. Walker, 29 Utah 2d 119, 505 P.2d 1199, 1200 (1973).
- “Mutual acquiescence” may be inferred by various conduct of the both owners and includes evidence of acquiescence in a visible line as a boundary, such as “[o]ccupation up to, but never over, the line,” or “silence, or the failure of a party to object to a line as a boundary.” Although acquiescence in a boundary line may occur through a party’s silence or failure to object and does not require an explicit agreement, “recognition and acquiescence must be mutual, and both parties must have knowledge of the existence of a line as [the] boundary line.” Argyle v. Jones, 2005 UT App 346,¶ 11, 118 P.3d 301.
- You need evidence from both sides of the fence because “[t]he mere fact that a fence happens to be put up and neither party does anything about it for a long period of time will not establish it as the true boundary.” See Brown v. Jorgensen, 2006 UT App 168.
- Be very careful about making any comments about the status of the property line. “When the parties agree that the line to which they occupy is not the true line and agree subsequently to ascertain the true boundary, the quality of acquiescence is destroyed and no boundary is fixed by continued occupation.” See Ault v. Holden, 2002 UT 33. Conversations about how the property line is in dispute despite a long-standing fence precludes acquiescence.
- “In other words, to acquiesce, a landowner must recognize and treat an observable line, such as a fence, as the boundary dividing the owner’s property from the adjacent landowner’s property, regardless of whether the landowner knows where the actual boundary lies or whether the boundary is uncertain. The acquiescence, or recognition, may be tacit and inferred from evidence, i.e., the landowner’s actions with respect to a particular line may evidence the landowner impliedly consents, or acquiesces, in that line as the demarcation between the properties.” Ault v. Holden, 2002 UT 33, ¶ 19, 44 P.3d 781, 788.
- The 20 years must be a continuous and unbroken sequence of years showing acquiescence. Any dispute as to acquiescence in the visible property line (fence) as the boundary line between the mutual properties at any time in the 20 years breaks the sequence.
- The party claiming claiming boundary by acquiescence is required to do something to “occupy” the claimed property. It is not material to the analysis whether the non-claiming party occupies the other side of the fence/boundary line (although, under the right circumstances, such occupation may be important to determining whether the acquiescence was mutual).
- Once adjacent landowners have acquiesced in a boundary for a long period of time, the operation of the doctrine of boundary by acquiescence does not go away simply because of a subsequent discovery of the true record boundary by one of the parties. RHN Corp. v. Veibell, 2004 UT 60, ¶ 31, 96 P.3d 935, 943.
Let’s get back to our example. If the fence in the example was put up more than 20 years ago, there is a very good likelihood that boundary by acquiescence has been established. The primary question that will be in dispute is whether both landowners mutually acquiesced in the fence as the property line. If evidence arises that the fence had long been a source of contention and dispute, then it is unlikely to succeed. If there is absolute silence from the non-claiming landowner, there is a greater likelihood of success. You need to be aware that these cases are highly fact-intensive. The best evidence will be witnesses and, if possible, documentary evidence of acquiescence by the landowners.
Establishing real property ownership rights can require a complex bit of legal wrangling. I do not recommend attempting it on your own. If you have questions, you should ask them. If you would like more information about real property rights, contact me, Utah attorney Ken Reich. I regularly represent companies and the individuals and families that own them. My job is to know and understand my clients and their goals. Together with the right legal experts, I can help you get the result you want.