Real Estate Law; Boundary By Acquiescence

A common problem faced by many Utah landowners, including homeowners in residential subdivisions, is what happens when the fence line of your property doesn’t match up with the boundary line as determined by a survey of the legal description found in your deed?  This question may become quite important because improvements, such as garages, etc., that may not be easily moved may have been installed some time ago (frequently by a prior owner) in a way that encroaches on the wrong side of the surveyed line.

The answer to this question, as is often the case with legal matters, is “it depends.”  In this case, absent an express boundary line agreement between you and your neighbor, it depends on whether the legal doctrine of “boundary by acquiescence” applies.

The doctrine of boundary by acquiescence, which is closely related to the ancient common-law doctrine of adverse possession, was recently clarified by the Utah Supreme Court in two 2016 decisions.  As clarified, establishing a boundary by acquiescence requires a claimant to show the following elements:

(1) a visible line on the ground marked by monuments, fences, buildings, or natural features;

(2) the claimant’s occupation of his or her side of the visible line, right up to the visible line, in a way that would give a reasonable adjoining landowner notice that the claimant is using the line as the boundary between their two parcels;

(3) mutual acquiescence in the line as the boundary by the adjoining landowners; and

(4) for an uninterrupted period of at least 20 years.

See Anderson v. Fautin, 2016 UT 22 at ¶ 31 and generally (expressly overruling any prior inconsistent Utah case law).

Moreover, once all of the elements of boundary by acquiescence have been met, ownership of the strip of land that is outside the claimant’s deed automatically vests in the claimant.  See, e.g., Q-2 LLC v. Hughes, 2016 UT 8, generally and at ¶¶ 1, 8 (“[A] party obtains title under the doctrine of boundary by acquiescence by operation of law at the time the elements of the doctrine are satisfied.”).

The purpose for the doctrine of boundary by acquiescence is to avoid unnecessary, and very often unforeseen, disruptions to the use of real property.  Most real estate transactions, such as the typical purchase and sale of a single family home, are done without a survey.  In addition, sometimes modern surveys in Utah don’t match up with older surveys that were done using less sophisticated equipment, etc.  Boundary by acquiescence helps to ensure that a buyer will receive what s/he sees and reasonably perceives to be the real property involved in the transaction as a result of a visual inspection of the property.  In that way, it acts as a “doctrine of repose,” very much like a statute of limitations, of which boundary by acquiescence and adverse possession are two important examples.

The lesson?  Good fences really should make good neighbors.  Just make sure that your neighbor doesn’t build his fence on your side of the line; and certainly don’t let it stay there for 20 years!  J.D. Milliner

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