Unpublished - Agreed boundary case fence line

[LA Stevens]

Attached is a recent Unpublished Case where the court determined the fence to be a boundary because the homeowners were uncertain to where the boundary was located. They agreed verbally and never checked to see if a surveyor could make the determination. However much later, a surveyor did opine on the dividing line for a subsequent owner that was not accepted by the court.

Although not published, it does a decent job of describing past case laws and the reason for their decision (good, bad or indifferent).

With this case in mind, it would be appropriate to be asking the property owners on where they think the boundary is and why.

[dmi]

Thanks for this post. We can never be reminded enough about looking to find EVIDENCE to support our opinion or a contrary opinion. Yet again we see a survey where there is a question about a fence, yet no fence is shown on the R/S

[LA Stevens]

We are preparing the description for the adjudicated boundary and a survey of the area. I'll post a prelim copy, when appropriate.

[Dave Karoly, PLS]

Just to be a pain in the behind...

Assume this case didn't happen and it is now 2042 when a dispute arises. All the direct testimonial evidence of the agreement is gone. Both properties have changed hands several times.

The Common Law doctrines are supposed to bind not only the original parties but their successors too.

Now the fence is still there but all evidence of why it is there is gone. Most States would recognize the boundary under the Doctrine of Acquiescence but in California the Court would not be able to declare the fence is the boundary because the direct evidence of the agreement is lost. This seems to defeat the purpose of the Common Law boundary doctrines which is to promote stability of boundaries and prevent imaginary lines from turning into expensive lawsuits.

The nature of boundary evidence is it fades over time; particularly testimonial evidence.

[dmi]

But in 2042 you do not have any evidence to say the fence is or IS NOT the BOUNDARY. There is case after case in the history of IBLA cases where is issues are:
Who built the fence
When did they build the fence
Why did they build the fence
What control, if any did they use to build the fence

So we can see a pattern of not accepting a piece of evidence simply because it exists. So finding physical evidence at odds with written evidence, put the surveyor on notice TO SEARCH FOR MORE EVIDENCE, that's all.

A surveyor, surveying under federal authority, HAS NO AUTHORITY to give away federal lands and conversely the same surveyor is OBLIGED to protect bona fide rights. Brown indicates that a surveyor should ought to give the client their full measure without taken from the lands of others.

[LA Stevens]

Attached is a copy of my final survey and the line agreed upon from the adjudication. Still don't have the one lender involved signed off yet, but the attorney is writing a letter claiming the lender is subject to Slander of Title, if the proposed sale falls through - by the lener not processing the partial reconveyance in the most efficient manner.


DMI - Did I show enough occupation for you?

[Dave Karoly, PLS]

It's a boundary case; I don't think the lenders have any rights outside of the agreed upon boundary since there is no title transfer between Kliban and Dixon under the agreed boundary doctrine. The courts have explained this in numerous cases and have explained the agreed boundary doctrine is effectively the opposite of adverse possession which is a title transfer and does not involve agreement, in fact agreement is fatal to AP.

[Dave Karoly, PLS]

I am not an Attorney but I don't play one on TV.

Assuming the Title Company is requiring partial reconveyances from Dixon's lender to ostensibly clear Kliban's title I think the TC people need to ask their Attorneys to explain the principle of Res Judicata to them. The court already ruled as to the location of Dixon's western boundary.

Or look at it this way. The oral boundary line agreement was before Dixon took title to his property. These agreements attach themselves to the respective party's deeds. So Dixon only took title up to the fence line despite the words of the description. Usually the buyer takes title via a grant deed then subsequently signs the Deed of Trust. So Dixon's lender only received title up to the fence line under the principle of Dixon could only transfer what he received in the first place.

[dmi]

Asking a title company,what it is they issue?
Ask a lender, what it is they loan money on?

THE DEED.

But I would like to see the case(s) where the leander forclosed on something other than the deed they lent upon.

[LA Stevens]

I agree with you DAve. I haven't been consulting with the attorney, because they havent wanted to pay me for the consultations.

I argued with the title expert (who refers quite a bit of business by way) and gave them all of the citations and articles on the concept. First they asked the City if a Lot LIne Adjustment was required over my objections. The City sent a letter saying they had no jusrisdiction, just as I had told the title folks.

Unfortuantely, the title folks are putting people through many unneccessary girations. The biggest problem resides with the title company not providing title insurance, unless all of these things are done to their satisfaction.

Still waiting for your analyis on the Trinity Lutheran case. Let me know when you will continue your reserach and I'll see if we can check the other archives in the area.

[dmi]

Larry that proves my point, doesn't it? Yes it is true owners may fix their boundaries, but if they do want to insure nightmares for subsequent owners, then by all means do not consider the statute of frauds, or silly old title insurance.

[land butcher]

In 2042 the govt will own everything and it won't matter.

[AlexKelser]

The 3rd element of "the agreed-boundary doctrine" is that the fence exists for at least the statute of limitation time period for for such circumstances. Does anyone know how many years that actually amounts to?

Alex

[E_Page]

The answer is not partial reconveyance or LLA, it's deed reformation to correct the descriptions of the deeds to conform with the judgment. the title companies can reissue policies based on those.

The problem that prevents use of the obvious answer is that many title people no longer understand title. Up until about the early 90s, title officers were the title experts, and their advice could be relied upon. Since then, more and more as the title experts have been retiring, they have been getting replaced by experts not of title, but of comparing risks to actuarial tables, and we see more and more demands for landowners and surveyors to file incorrect documents, create transfers where none are required, or to recognize boundaries not where they have been long established, but where the latest measuring device used at the site would place a certain dimension.

Far too few title experts left in the title industry. Far too many know-nothings with the financial power to force actions that later create problems that don't get covered.

[E_Page]

The 3rd element of "the agreed-boundary doctrine" is that the fence exists for at least the statute of limitation time period for for such circumstances. Does anyone know how many years that actually amounts to?

Alex

Five in CA.

[Dave Karoly, PLS]

The Statute of Frauds does not apply.

"such line becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements…. [P] … [P] The object of the rule is to secure repose, to prevent strife and disputes concerning boundaries, and make titles permanent and stable…. If a measurement is made and the line agreed on and acquiesced in as required by this rule, it is binding on and applicable to all parties to the agreement and their successors by subsequent deeds." -Bryant v. Blevins, 9 Cal. 4th 47 (1994).

There is no transfer of land despite how inaccurate (really should be imprecise) the established boundary may be found to be by subsequent surveys,

[dmi]

From Wiki


The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract.

Traditionally, the statute of frauds requires a signed writing in the following circumstances:

Contracts in consideration of marriage. This provision covers prenuptial agreements.

Contracts for the transfer of an interest in land. This applies not only to a contract to sell land but also to any other contract in which land or an interest in it is disposed, such as the grant of a mortgage or an easement.

Many folks hit this stumbling block in their understanding of the process as we see from Mr Steven's trials and tribulations and that of his client with respect to marketable title.

[Dave Karoly, PLS]

Our case law directly contradicts your post. The case Larry is posting about is an Agreed Boundary case, there is no transfer of title...

"...that the agreement as to the line may be in parol and that it does not operate to convey title to the land which may lie between the agreed line and the true line, but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy; that the agreement as to the line is not in violation of the statute of frauds, because it does not transfer title; that the parties hold up to the agreed line by virtue of their original deeds and not by virtue of the parol agreement; that "the division line when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed," and that if more is thus given to one than the calls of his deed actually requires, he "holds the excess by the same tenure that he holds the main body of his lands." -Young v. Blakeman, 153 Cal. 477 (1908)

[Dave Karoly, PLS]

The average lay person is amazingly incurious about the boundaries of their real property. They see a fence and the park-like backyard yet they don't wonder if the fence is the boundary or not. In some cases they hire a surveyor years after acquiring the property when they find out the so-called record boundary doesn't fit the occupation line. Years later they likely can't force the grantor to solve the problem with the neighbor.

The fact is if there is a fence visible then the property owner is on inquiry notice as to whether it is or is not the boundary. If they don't know then they should investigate. A couple of obvious lines of inquiry are to ask the neighbor and to get a survey.

In matters of boundary they generally don't have recourse to claiming the established boundary is unenforceable under The Statute of Frauds. Title is who owns the property and the nature of their rights and encumbrances, whatever the size and shape of the property. Boundary is the size and shape of the property. Title and boundary are not synonymous.

[dmi]

"the agreement as to the line is not in violation of the statute of frauds, because it does not transfer title;"

Exactly my point Dave, I am talking about transfer of title. This is an entirely different matter than WHERE is the line. So no the case law does not refute my point.

nice try though

[Dave Karoly, PLS]

This is precisely the point.

The case under discussion is an agreed boundary case which has been fully adjudicated up through the appellate level.

The case is Kliban v. Dixon, unpublished. It can be found on Google Scholar.

There is no transfer of title in this case, the court ruled on the where (a fence) and the what (agreed boundary) of the boundary. It baffles me why the title company or lender would try to defy the court in this case by making the property owners jump through illogical and unnecessary hoops.

[dmi]

I read the case. I am not baffled in the least. The court's ruling is clear. The action of the title company and the lenders all perfectly clear to me. I do not know how many times a title officer has told me they insure the description as listed in their report and how many reports that I have seen where rights in possession were excluded. When lenders foreclose, they are going to foreclose on the WRITTEN DESCRIPTION that was used for the purpose of their making a loan in the first place.

This case and Blevins and oodles of other cases would never have needed to be adjudicated had the parties provided constructive notice of their agreement.

[Dave Karoly, PLS]

That is an incredible belief on the part of a Title Company that they think they can ignore Court judgments but I doubt they really think they can get away with ignoring Court judgments.

You have the best kind of boundary there is, an adjudicated boundary and the theory is a lender would try to defy that? That would be an insane business practice on the part of the lender, technically it is slander of title.

So you say they only foreclose on the written description. Of course the word "description" itself does not imply a perfect description, only a description which may be imperfect.

However consider the case of a senior-junior rights overlap. So the TCs and the Lender (carrying this out to its logical conclusion) think they can foreclose on the Junior parcel into the Senior parcel following the Junior's exact description? Think about that. They can't just blithely foreclose on the exact description, there could be other circumstances that prevent that. They can still foreclose on Dixon but they can't gain title to anything beyond the fence no matter what Dixon's description says.

Now I understand this is a situation where the Title Company is requiring a partial reconveyance from Dixon's lender in order to issue Title Insurance in connection with a transaction involving Kliban. The Dixon lender is refusing to do so. I suppose you can't make the lender do anything but I would be shopping for a Title Company with a shred of common sense (maybe they no longer exist).

Oh my aching back, how have we come to this place of persistent ignorance?

[Dave Karoly, PLS]

In a way, Dixon's lender is correct. They have nothing to reconvey. If they foreclosed then they would get whatever Dixon owns despite the inaccurate description. The Court has already ruled on the outer limit of Dixon's title which is the fence.

We had a Title Officer here who was great at dealing with this type of thing but they laid her off :-(.

[dmi]

Is the case out there somewhere? The one where the lender was barred from foreclosing on the written legal description in the deed of trust because Moe and Joe pointed to the line someplace other than the deed of trust location?
Is the case out there somewhere? The one where the title company has held liable because they did not insure to the adjudicated line?

We have a subdivision map act in California and it probably needs to be considered at some point when boundary lines are changed from what appears in the imperfect record. A title company will likely only want to insure an SMA compliant parcel. In the citation you provided, did the court rule that the adjudicated line results in an SMA compliant parcel? Did the court in its adjudication rule that the results of it's order is that title companies shall issue title insurance? Nope they didn't. The only question before them was a dispute between to neighbors as to location. The title company was not a party to the action and therefore is not violating a court order and is not bound by the ruling.

I'll amend my opinion based upon evidence of a court case(s).
Title companies and lenders have their own interests and rights and are free to make their own business decisions without regard to what surveyor's and land owners think about how those entities ought to behave.