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By Joseph G. Ballstaedt
801-365-1021
[email protected]

Let’s suppose your neighbor accidentally builds a fence two feet into your property. And let’s suppose you don’t object for more than a couple decades. Now, who owns that two feet of land? Under Utah’s law of boundary by acquiescence, those two feet may likely belong to your neighbor.

This post discusses how a new property boundary is established through this doctrine of boundary by acquiescence, when this doctrine usually comes up, a similar doctrine to boundary by acquiescence (adverse possession), and how land acquired through boundary by acquiescence must be transferred to others.

The Elements of Boundary by Acquiescence

Under Webster’s dictionary, acquiescence is “passive acceptance or submission.” Acquiescence in the legal context generally means a failure to object to something you probably should have objected to. It is a form of waiver. By non-action you may lose certain rights.

With respect to land and boundaries, acquiescence can result in harsh results. If your neighbor builds a fence two feet into your property, you probably have a legal obligation to raise and issue, tell your neighbor to move the fence, and correct the problem. If you do not, under the law, you may be deemed to have acquiesced to your neighbor’s land grab, whether your neighbor acted intentionally or not, and your neighbor may one day become the legal owner of this land through the doctrine of boundary by acquiescence.

To establish boundary by acquiescence, four elements must be met: 1) a person must occupy the land of a neighboring property owner 2) up to a visible line marked by fences, buildings, or other “monuments” (i.e. a boundary line) 3) in such a manner that evidences that the two property owners acquiesced to that new boundary line 4) for a period of twenty years. Stated perhaps more simply, a person must physically establish a new property line for a period of 20 years without any protest from his neighbor.

Nothing more is required once these four elements listed above are met. The property owner who infringed into the other’s land acquires the new land by operation or law. What this means is that the property is legally his. He doesn’t need to file a petition to the court to establish the new property line. He doesn’t have to record a deed showing that he owns the land. However, this legal reality doesn’t mean that there won’t be disputes, lawsuits, and confusion about the new boundary line—and disagreement as to whether these four elements have been established. The fact that the new property line exists may need to be clarified by a court, but all the court does is affirm what has already occurred. The court determines whether, after the fact, the conduct of the neighbors resulted in a legal transfer of the property. The court is not effectuating a transfer of land.

When Boundary by Acquiescence Becomes an Issue

Often, boundaries are created by acquiescence, and nobody knows that the property line is incorrect, nobody cares that the property line is incorrect, or both. Issues surrounding boundary by acquiescence usually come up when a purchaser buys land, conducts a survey, realizes that the legal title and boundaries of a property are different than the physical property boundaries, and raises the issue. In these situations, new neighbors quickly become enemies. Lawsuits sometimes erupt.

Boundary by Acquiescence and Adverse Possession

Adverse possession is a very similar doctrine to boundary by acquiescence. Like boundary by acquiescence, adverse possession allows somebody to take property away from another through possession. The elements of adverse possession, however, are significantly different. Utah statutes explain that a party can obtain ownership of land through adverse possession by occupying the land continuously for seven years and, in addition, paying taxes on the land. Courts explain that if the party occupying the land does not pay taxes, the time requirement for occupation is longer: “usually about twenty years.” Another significant difference between adverse possession and boundary by acquiescence is that the possession of land under adverse possession must be “open and notorious” and “hostile.”

Transferring Land Obtained by Boundary by Acquiescence

Once a property owner acquires new land through boundary by acquiescence, he remains the owner of that land until it passes to someone else, which may occur when that new owner sells and transfers the land to another owner by signing a deed. But future transfers can create significant confusion and conflicts because the owner will own land by deed and other connected land by the doctrine of boundary by acquiescence. If that owner sells his land, the description of the land in the deed may only refer to the land that he purchased, not the land he acquired by boundary by acquiescence. So, for example, unless the parties do a survey and catch the problem in the legal description in advance and corrected it to include the land acquired by boundary by acquiescence, it may not be clear whether the buyer purchases just the property contained in the the legal property or also the property acquired by boundary by acquiescence. In such a circumstance, Utah courts have explained that the seller must somehow transfer title to the land obtained by boundary by acquiescence, which may be done outside of a deed. Also, Utah courts have suggesting that what the parties to the transaction intended or understood may be controlling, even if that intent is not clarified in the transfer deed.

Let me try and give you an example of how this might play out. Original Owner owns Original Land, and the Original Owner’s deed shows that he purchased Original Land. Original Owner owns this land and nothing more. But then Original Owner builds a fence on what he thinks is the property line, but the fence is actually 15 feet into Neighbor’s Land, which neither Original Owner nor Neighbor realize. If, after 20 years, the elements of boundary by acquiescence are met, Original Owner becomes the legal owner of a 15-foot portion of Neighbor’s Land, which we’ll call the Acquired Land.

So, Original Owner owns all of Original Land, which is documented in a legal deed, and also Acquired Land, a portion of land formerly owned by Neighbor. Importantly, Acquired Land is not part of the legal description of the Original Land that Original Owner purchased more than 20 years ago. After this point, if Original Owner sells his land to New Buyer, a transfer using the same legal description to describe the Original Land may technically just convey the Original Land to New Buyer (what he purchased a long time ago) and not also the Acquired Land. Original Owner and New Buyer may believe that New Buyer now owns everything that Original Owner owned, which may be the if that is what they intended and understood, but it may not be the case. As stated above, what probably controls is the parties’ intent and understanding. Perhaps Original Owner wanted to keep the 15-foot portion, or perhaps New Buyer did a survey before purchasing the property and learned that the Acquired Land was not included in the legal description. Certainly, Neighbor would not own the Acquired Land since it was lost through boundary by acquiescence, but it would be unclear whether Original Owner or New Buyer owned that land. This ambiguity may not be a problem, however, if Original Owner makes no subsequent claim to the property and New Buyer moves forward as if he purchased the Acquired Land.

But what if Neighbor sells his land to Second Buyer who has a survey done, realizes that New Buyer has a fence on part of the land that Second Buyer thought he purchased from Neighbor, and wants to correct what he believes is an incorrect boundary line? As you can imagine, this scenario would likely result in confusion and a dispute—and potentially a lawsuit amongst angry neighbors. Utah courts have addressed and resolved very similar situations.

Addressing Property Line Disputes

If you have questions about—or are involved in—a property line dispute, the laws explained above may be applicable. Property line disputes involve a variety of legal and practical issues, and an experienced attorney can help you understand and navigate these issues. If you need help, I am happy to assist. I offer a free consultation. My direct dial is 801-365-1021, and you can e-mail me at [email protected].

joseph-g-ballstaedt

Joseph G. Ballstaedt
801.365.1021
[email protected]

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