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 second 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. The first of the three articles can be found here.
Boundary by Agreement
Boundary by agreement honors verbal or unrecorded agreements made to settle a property boundary. In order to claim a boundary by agreement, the following elements must be shown: (1) an agreement between adjoining land owners that (2) settles a boundary line that is uncertain or in dispute, and (3) a showing that injury would occur if the agreement were not upheld.
In order to bind successor owners to the same agreement, it must be shown that the agreed-upon boundary was marked or clearly identified so that a purchaser would be on notice of the boundary’s location. Bahr v. Imus, 2011 UT 19, 250 P.3d 56 (agreement must be explicit; “inference of an agreement based on mere acts or omissions of the parties is the domain of boundary by acquiescence”).
Example: Bahr v. Imus
The Bahr case from the Utah Supreme Court provides a nice example to examine boundary by agreement. In Bahr, adjoining landowners met and agreed to split the cost of building a fence between their respective lots. They did not have a survey done and, using their own tape measure and calculations, plotted out the boundary lines for the fences. The landowners then landscaped up to the fences. One of the landowners sold to another and that property was sold again. Twenty years after the fences were constructed, a dispute arose between the then existing landowners: one property had a Russian olive tree that the newest landowner did not like. This dispute led to a survey of the property and the discovery of a discrepancy between the location of the fences and the legal boundary lines. Litigation ensued.
The Bahr court provided a concise roadmap for examining boundary by agreement. It is a legal theory designed to resolve boundary disputes and provide certainty for landowners. The required elements of boundary by agreement are:
(1) “an express agreement between adjoining landowners.” This agreement may be oral or written but must be based on an explicit statement of agreement and not based on assumptions, acts, or omissions.
(2) “settling a boundary that is uncertain or in dispute.” This means that if one party has had a survey done and knows the actual boundary location, then this element cannot be met.
(3) “a showing that injury would occur if the boundary were not upheld.” This requires some reliance on the agreement by the parties in possession of the property. It typically requires the landowners to spend money (this is the “injury”) making improvements (building fences, landscaping, etc.) or doing something to the land in reliance on the agreement.
(4) “where the doctrine is being invoked against successors in interest, demarcation of a boundary line such that a reasonable party would be placed on notice that the given line was being treated as the boundary line between the properties.” The improvements performed in reliance on the agreement must create something on the land that looks like a boundary line between properties so that someone looking at it for the first time would be put on notice that it represents a boundary between the adjoining properties. The best example is a fence or a wall. A poor example would be a tree. A line of trees, however, might be sufficient. Use your imagination.
In the Bahr case, the court easily found that each of the elements were satisfied: the adjoining landowners agreed to and jointly built and paid for fences between their respective properties. They had no idea the precise boundary locations but did their best with tape measures. They each then landscaped up to the fence lines. Done! Every element neatly met.
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.
