Agreed Boundary Doctrine review January 2016

[Dave Karoly, PLS]

Mike, your procedure just seems like basic common sense.

The Surveyor shows up at a property with a 100 year old house. The subdivision in a dense, expensive, urban city is 130 years old. The block control dates to the 1930s. The City Surveyor found the block is 1' long in 1941. He puts the error where he thinks it belongs which is east of the house; in other words, he added one foot to the P.O.B. tie distance from the block corner. He appears to base this on the pattern of occupation.

The surveyor measures the Deed tie distance from the block corner (derived from modern control). The City surveyor in 1941 went one foot further but this is ignored. Then he sets up on the lot corner, turns 90 and is looking at the house. There was no further investigation at this point.

The title history is the two lots were in common ownership to 1989. The lot with the "encroaching" house was sold first; presumably the grantee was put into possession of the entire house and lot (the grantor owned all of the land). The "encroached upon" lot was sold next; it is junior. The intention of the grantor and grantee is crystal clear.

Unfortunately, the Attorney incorrectly plead Adverse Possession and lost. Then it went to the Court of Appeal and they affirmed. So the incorrect line may be fixed forever or until someone acquires both lots.

Note: there is one caveat...the house was in dilapidated condition in 1989. The owner renovated it and put a basement under it. It doesn't say this anywhere but it is possible the house was enlarged after 1989, 2' on the encroached side. If so, and I have no evidence this is true, then the new part of the house would be encroaching. I'm basing my discussion on the fact statement in the case which sometimes leaves a lot to be desired.

[Dave Karoly, PLS]

I added two files.

An Excel XLS filed saved from Open Office Calc and a new PDF file.

I added the Westlaw citations to the unpublished cases. I don't have Lexis Nexis citations.

I deleted the review needed column because I don't need it anymore.

[Olin Edmundson]

First of all thank you Mike and Dave for sharing your knowledge on this subject, your active participation in this forum is an incredible resource. I've been thinking about this agreed boundary doctrine and realize that basically anytime you discover a difference between an original boundary and possession, there exists a possibility for this doctrine to exist. From a practical perspective, I'm wondering if this really matters as in 99.9% of the cases, if this conflict exists, there is a problem, and unless two clients can't get along and have a 100k or more to spend on litigation, it really can't go anywhere as I don't see that we as surveyors can make this call especially given the fact that the courts seem to be split on the matter. So, we're left with the duty of brokering a solution of some kind to solve the problem and get title perfected out of court. Do you two see this from a different perspective?

[Dave Karoly, PLS]

My preliminary thoughts are:
If the boundary is objectively certain and the boundaries reasonably fit the occupation lines then go ahead and monument the boundary and file your Survey.

If the boundary is objectively uncertain and one reasonable solutions fits the lines of occupation, at least generally, you should probably go with that one. In my opinion, remote P.O.B. ties are the first thing to yield. If the provisional solution conflicts with major occupation (such as old buildings) then more investigation is warranted. For example, an old building carries more weight than a new building but that is not absolute. If everything fits except one or a few lines, this would be the time to investigate a possible agreed boundary such as by reliance in good faith on an old although erroneous survey.

If the boundary is objectively certain and an occupation line does not fit, this is subjective uncertainty. At least ask both owners about it. Don't offer any opinions yet. Maybe they want the fence on the true boundary, then every one is happy. If someone is adamant about the fence they need: 1) direct evidence of mutual uncertainty at the time the fence was established as the boundary (it could've been existing but it's easier to prove a fence the neighbors built), 2) direct evidence of a mutual agreement at the time of establishment, 3) at least five years of acquiescence or circumstances under which a substantial loss would occur. Note the mutual part is critical, the courts will not accept one-sided agreements. The testimonial evidence can come from one side of the line but of course more is better. Testimony from a predecessor of one side can corroborate testimony of the other side.

Although a written boundary line agreement can legally shore up a subjective uncertainty boundary (assuming the neighbor's agree to settle out of court) I'm thinking it would be better to do a lot line adjustment in this situation just so it can't be challenged. This also allows them to do some creative swapping if they wish to. Even if the claimant has to pay a little bit for land they already own, it still is a lot cheaper than pursuing litigation. A snag could be zoning compliance. This is where mediation is a much better solution.

I had a client that I helped resolve an easement dispute. His property has a subdivision backing up to it. One of the lot owners tore down the joint fence one day thinking it should be further back. He said they got a mediator and it was great. They worked out their differences and they are now friends which is a much better result than litigating it and becoming sworn enemies with one of your neighbors.

[William Magee]

My preliminary thoughts are:
If the boundary is objectively certain and the boundaries reasonably fit the occupation lines then go ahead and monument the boundary and file your Survey.

If the boundary is objectively uncertain and one reasonable solutions fits the lines of occupation, at least generally, you should probably go with that one. In my opinion, remote P.O.B. ties are the first thing to yield. If the provisional solution conflicts with major occupation (such as old buildings) then more investigation is warranted. For example, an old building carries more weight than a new building but that is not absolute. If everything fits except one or a few lines, this would be the time to investigate a possible agreed boundary such as by reliance in good faith on an old although erroneous survey.

If the boundary is objectively certain and an occupation line does not fit, this is subjective uncertainty. At least ask both owners about it. Don't offer any opinions yet. Maybe they want the fence on the true boundary, then every one is happy. If someone is adamant about the fence they need: 1) direct evidence of mutual uncertainty at the time the fence was established as the boundary (it could've been existing but it's easier to prove a fence the neighbors built), 2) direct evidence of a mutual agreement at the time of establishment, 3) at least five years of acquiescence or circumstances under which a substantial loss would occur. Note the mutual part is critical, the courts will not accept one-sided agreements. The testimonial evidence can come from one side of the line but of course more is better. Testimony from a predecessor of one side can corroborate testimony of the other side.

Although a written boundary line agreement can legally shore up a subjective uncertainty boundary (assuming the neighbor's agree to settle out of court) I'm thinking it would be better to do a lot line adjustment in this situation just so it can't be challenged. This also allows them to do some creative swapping if they wish to. Even if the claimant has to pay a little bit for land they already own, it still is a lot cheaper than pursuing litigation. A snag could be zoning compliance. This is where mediation is a much better solution.

I had a client that I helped resolve an easement dispute. His property has a subdivision backing up to it. One of the lot owners tore down the joint fence one day thinking it should be further back. He said they got a mediator and it was great. They worked out their differences and they are now friends which is a much better result than litigating it and becoming sworn enemies with one of your neighbors.

Dave,

very nice. You should have added your copyright symbol at the end of that post. Its golden.

Hope you have a chance to hop over to the conference. It would be great to meet.

thanks for your efforts.

[Warren Smith]

William,

I agree about the conference being a great place for a lot of us posters to meet and spend some face time.

[Olin Edmundson]

So if a survey is performed and shows a fence to be off the property line, then based on this the owners rebuild the fence on the line, can someone come back later and successfully claim the agreed boundary doctrine applies if they meet the elements? If so, how long might they have to do this before it extinguishes? I'm trying to figure out how much effort we should reasonably be spending looking into the possibility of this agreed boundary. If one of the current owners were privy to an agreement, you'd think it would come up at the time of a current survey.

[mpallamary]

Olin, I have a day long presentation I have given on this topic. There are a lot of facets to this matter. The presentation has been forwarded to the conference committee for consideration.

[Dave Karoly, PLS]

So if a survey is performed and shows a fence to be off the property line, then based on this the owners rebuild the fence on the line, can someone come back later and successfully claim the agreed boundary doctrine applies if they meet the elements? If so, how long might they have to do this before it extinguishes? I'm trying to figure out how much effort we should reasonably be spending looking into the possibility of this agreed boundary. If one of the current owners were privy to an agreement, you'd think it would come up at the time of a current survey.

Theoretically, yes. The claimant would have to prove the elements; the fact that they accepted the surveyed boundary may estop them from doing so after the fact. Their conduct would tend to disprove there was ever an agreement at the fence alignment.

Technically, if there is a valid agreed boundary at the fence then accepting the true surveyed boundary without a written conveyance would be a violation of the Statute of Frauds. However, as a practical matter, since the claimant of an agreed boundary has to prove each of the elements, and they presumably are agreeing to accept the surveyed true boundary then there is no one to prove the elements.

[mpallamary]

I tracked down the Hedgecock Case, attached hereto.

[Dave Karoly, PLS]

Hedgecock is interesting. If I'm reading it right, the house was clear, the encroachments were lesser items like a deck and alcove.

FWIW I think the California Courts are misapplying the tax requirement. I think they should follow Justice Shaw's reasoning in Price v. De Reyes, 161 Cal. 484, 490; 119 P. 893 (1911) "...the natural inference would be that the assessor put the value on the land and improvements of each party as disclosed by the visible possession..." Price involved an occupied lot the same size as indicated by the Deed but shifted 18" north; De Reyes was put into possession by the Grantor (who owned all of the land at that time). The Grantor was right across the street for many years before the litigation began between Price and De Reyes (they had the same Grantor). Justice Shaw applies several doctrines all together to justify reversing an order denying De Reyes's motion for a new trial.

The tax requirement really should apply mainly in Title cases (e.g. cases involving Title to an entire parcel where it isn't a dispute over boundaries); it makes sense in those cases. But in boundary cases where the claimant has obviously been in possession up to a visible and obvious boundary it makes sense to rule the taxes were paid up to that point. This is discussed in "Resolving Boundary Disputes in California; A Radical Reassessment in Light of Proposition 13", 43 U.S.F. L. Rev. 829, by Jack I. Garvey. I don't think I would go as far as he advocates (the Real Property Attorneys naturally would like to make their life easier); there would need to be some type of throttling of the inference but the current interpretation of the Courts is too strict.

Proposition 13 was a tax revolt; I don't think the voters had any intention to upend the tax payment presumptions. If the occupation and possession is heavy and obvious, such as buildings and walls; it isn't too much of a stretch to say the taxes are paid on the ground too when the buildings and possessions are separately assessed. The paper boundary is just an imaginary line; it seems illogical in some cases of heavy use to say the taxes are not paid beyond it.

I'm not saying the Court is incorrect in Hedgecock since the possession appears to be lighter according to the opinion.

[LS_8750]

Just thought this was worth elevating to the present............