By Joseph G. Ballstaedt
801.365.1021
joe@snjlegal.com
Let’s suppose your neighbor wants to build a fence between your two properties. You two aren’t sure where the real property line is and neither wants to pay for a survey. So you both agree to a suitable property line and mark it with wooden stakes, and your neighbor proceeds to build a very expensive fence and landscaping on his side of that
fence. And let’s suppose you later get a survey done that shows that the fence is five feet into your land. Your neighbor’s improvements are on your land, and you now have five feet less land. Under Utah’s boundary line laws and the doctrine of boundary by agreement, those five feet probably belong to your neighbor.
This post discusses specific elements of the doctrine of boundary by agreement, practical challenges in having a new boundary recognized, a more detailed example of how boundary by agreement might be triggered, and how this doctrine is different from other similar doctrines related to boundary disputes, including boundary
by acquiescence.
The Elements of Boundary by Agreement
Boundary by agreement is legal doctrine in Utah that can permanently and legally change neighbors’ boundary lines. It occurs when (1) two neighboring property owners make an agreement (2) that settles a boundary that is uncertain or in dispute and (3) one
of those landowners would later be injured if that new boundary line weren’t honored. Once these three elements are established, the new agreed-upon property line probably becomes the legally enforceable property line moving forward, even if the legal property line and survey line were different prior to these three elements being satisfied. Boundary by agreement results in one neighbor taking ownership of land that once legally belonged to another.
Practical Challenges of Boundary by Agreement
Satisfying the elements of boundary by agreement does not change the legal descriptions of neighbors’ properties. In other words, even after boundary by agreement occurs and property lines change, the county recorder’s office will still show the ownership that existed before the agreement. The two neighbors will need to execute and record a boundary line agreement that recognizes the change. And if one neighbor does not want to move forward with a boundary line agreement, the other neighbor may have to file a lawsuit to get a court order that recognizes the boundary change. In a
lawsuit, each party will probably have to pay their own legal fees. Because these and other property line disputes are expensive, they are best resolved outside of court.
An Example of Boundary by Agreement
Let’s suppose two neighbors own two neighboring parcels that together are an acre. Each neighbor has a house on his land. There is no fence separating the two properties, and the west neighbor wants to build a large and expensive stone wall right up against the property line and make other improvements. The west neighbor doesn’t want to spend the time and money to get a survey done, so he approaches the east neighbor and asks him where the property line is. The two walk their properties and decide
that they should each get a half-acre. They agree that their collective acre of land should be split right down the middle. The west neighbor and the east neighbor mark the mid-point with a few wooden posts, shake hands, and even sign a simple document that acknowledges that the new wooden posts create the property boundary line.
The west neighbor immediately builds an amazing and ornate rock wall right up to the agreed-upon line at a cost of $100,000. Moreover, he constructs an amazing water feature and other expensive landscaping just west of the wall for a cost of $75,000. A couple months later, the east neighbor decides to get a survey done to track the property line showing on the parties’ deeds. Sure enough, the property line under their deeds is 15 feet west of the new, agreed-upon property line, and the west neighbor’s
new improvements are all within the legal description of the east neighbor’s land. The east neighbor tells the west neighbor he needs to move his rock wall and new landscaping out of that area.
Under Utah law, does the east neighbor have to move his improvements? Probably not. The two neighbors have engaged in conduct that likely satisfies the elements of boundary by agreement. The property line was uncertain, the two neighbors agreed upon a boundary line, and the west neighbor spent $175,000 improving what he thought was his land. To now revert to the legal description (which the survey depicts) would injure the west neighbor greatly. Not honoring the new boundary line would destroy the
west neighbor’s investment of $175,000 to develop what he thought was his land. And stated more correctly, by making that $175,000 investment, the west neighbor satisfied the third element of boundary by agreement, and the land is now almost certainly his.
Differences Between Boundary by Agreement and Boundary by Acquiescence
Sometimes the legal doctrine of boundary by agreement is confused with the related but separate doctrine of boundary by acquiescence. Under boundary by acquiescence, a property owner can create a new property line and take land from a neighbor when the property owner physically establishes a new property line for a period of 20 years without any protest from that adjoining neighbor. The land taken legally becomes the property of the property owner, just as is the case with boundary by agreement. That land no longer belongs to the neighbor.
Boundary by agreement may not be as harsh as boundary by acquiescence because the parties must discuss and agree upon a new property line. Boundary by agreement doesn’t just happen by failure to dispute a property line, which is the case with boundary by acquiescence. Another difference between the two is that boundary by agreement can happen quite quickly, in a matter of days. Boundary by acquiescence, on the other
hand, requires 20 years of a visible property line with no objection from the other neighbor before it takes effect.
Also, boundary by agreement should not be confused with the separate doctrines of boundary by estoppel (although very similar) or adverse possession, which also can change boundary lines and property rights.
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 those 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 joe@snjlegal.com.
