Unpublished - Agreed boundary case fence line

[Dave Karoly, PLS]

Yes they can IF, and this is a very big IF, they truly don't know where the lot line is located.

1) They have to be uncertain (until Martin v. Van Bergen they could be subjectively uncertain, meaning whether it could be surveyed or not is irrelevant).

2) They have to agree to a physical location and mark it. This has to be mutual. Often cases fail this test because only one side thought they were establishing the boundary line.

3) They have to acquiesce in the physical location for at least 5 years or under such circumstances that a great loss would occur if the agreed location isn't upheld.

Martin v. Van Bergen is a published case which ruled the uncertainty has to be objective, that is it can't be surveyed. It probably only applies to Central California at least for now. As far as I know, no other Appellate Districts have accepted Martin's ruling on that.

If the parties know where the boundary line is located yet want to agree to another location then that requires a Lot Line Adjustment and they would have to comply with the local procedure.

[Dave Karoly, PLS]

Dane-

Of course Dixon's Lender can foreclose on the legal description which only carries up to the fence line (regardless of its accuracy).

1. Kliban and Dixon's predecessor made a valid boundary line agreement.
2. Dixon acquired Title subject to the valid boundary line agreement, that is only up to the fence line.
3. Dixon signed a Deed of Trust transferring ONLY the title he gained in trust to the Trustee.

I had the same question recently. I get the concern, how can the Judgment affect the Lender who was not a party in the case? The answer seems to be that when a property owner signs a Deed of Trust they only transfer an equitable title. The property owner keeps the possessory interest which includes the right to establish boundaries.

As to the concern over notice, there is plenty of notice. Constructive Notice is not the only kind of notice. Seeing a fence line puts the property owner on at least inquiry notice. That doesn't mean the fence line is the boundary line, just that the property owner does not investigate his boundaries at his own peril.

[dmi]

I appreciate you taking the time to consider our discussion. I am aware that there are various types of notice,but not all these types of notice are material to the business decisions of lenders and/or title companies. The folks in North Carolina at B of A are not going to be put on notice of any type by a fence.
As I mentioned before title companies do not insure rights in possession, so after the judge has settled the location dispute, now what? I suggest that for the process to be truly complete the parties will want to finally have marketable title.

[Dave Karoly, PLS]

That is hit and miss in my experience. It's up to one of the parties to get it recorded which doesn't always happen.

[E_Page]

Thanks Dave, for the clear & concise explanations of the elements of Agreed Boundary.


Terry, the agreed line is not a new line. It is a settling or defining of an existing and uncertain line. If other facts become known sometime after the agreed line is firmly established that would lead a surveyor to a different location, that different location would be the new line because the facts that led to it were previously unknown or unavailable to the parties who had need to previously establish the line.

Under the threshold of Subjective Uncertainty, if those facts would have given greater certainty to the true line location, and if they were known or should have been known by the landowner parties who established the line, and yet the parties neglected to or decided to not give those facts consideration, the agreed line would likely fail because there was no uncertainty.

I have seen older cases in which facts that would have lent reasonable certainty to a line existed and the parties agreed to a particular line without considering those facts because, although they should have known of the facts, there was no indication of actual knowledge of them. You are more likely to find such examples where land values were relatively low and to survey the land may have cast as much or more than the land was worth. I can think of no recent cases that would hold this level of subjective uncertainty.

Under subjective uncertainty, the parties generally still have to have some basis to believe they are establishing a line that is in reasonable conformance with the deed. If they are establishing a line they believe is elsewhere, then they are knowingly establishing a new line rather than attempting to give certainty to an uncertain line. That is a transfer of property, not Agreed Boundary Doctrine.

Under Objective Uncertainty, if there are facts that would have been available to a surveyor that would allow the surveyor to locate the line with reasonable certainty, an agreed line will fail.

Don't confuse that with a difference in position with an older survey based on measurements. If the line recognized by the landowners or their predecessors was established by them hiring a surveyor, if the survey was performed to a reasonable standard of care for that time, region, and conditions, if the landowners at that time accepted the line as marked as correct, but your measurements lead you to a location several hundredths, tenths, or in some cases, even feet different, the previous location is likely to prevail over your own.

Technical mistakes of measurement or minor deviations from what is now widely recognized as proper procedure are not things a court will normally invalidate a prior surveyed line location over. Those things that will cause a prior surveyed location to be rejected normally pertain to mistakes of recognizing what the boundary is and so locating the wrong thing.

Tying that back in with the concept of objective uncertainty, if the surveyor knew or should have known of certain facts that would identify what the boundary is and give reasonable certainty as to where it should be located but failed to give those facts proper consideration, the surveyed line agreed to may fail under Agreed Boundary Doctrine but may prevail as an adverse claim, or it may fail entirely as it did in Van Bergen. As I've discussed elsewhere on this forum, there are several problems with the Van Bergen case.

Nevertheless, Van Bergen leaves the state of CA case law such that the standard of Objective Uncertainty could become more firmly entrenched, effectively eliminating the recognition of Agreed Boundaries, or in the next case on ABD before the Supreme Court, the SC could recognize the flaws in Van Bergen, clarify the principles from Bryant v. Blevins and reconcile more recent rulings with older ones such as Ernie v. Trinity Lutheran.

Now I've probably gone and muddied what Dave made so clear.

[Dave Karoly, PLS]

The crucial thing to understand is: the agreed boundary IS the boundary per both Deeds.