Q-2, LLC v. Hughes

January 27, 2014

Utah Court of Appeals

January 24, 2014

2014 UT App 19 (Click for Full Text)

***Subsequent history: Further proceedings in this case resulted in the issuance of an opinion by the Utah Supreme Court. Please see Q-2, LLC v. Hughes, 2016 UT 8.

This decision establishes that title to disputed property passes when the elements of boundary by acquiescence are established, even if the actual property boundary is asserted by a subsequent property owner.

In this matter, the two property owners conceded that previous owners had treated a fence line as the property boundary for many years, thus establishing boundary by acquiescence. However, the boundary dispute was never settled by either agreement or a quiet title action.   Notwithstanding the boundary by acquiescence, one of the current owners claimed ownership of the disputed area through adverse possession.  The other owner argued that title to the disputed property had never changed hands (because there was no “official” determination of the boundary by acquiescence), and so adverse possession could not be established.

The other owner reasoned that if the person claiming adverse possession actually owned the property in dispute, then adverse possession was not legally possible, since it requires that the property occupation be “hostile” or “adverse” to the interest of the property owner.   In other words, a person cannot occupy or use property adverse to his or her own interest in the property.

The Utah Court of Appeals noted that the question of when title to disputed property changes hands has not been established in Utah.  However, the Court evaluated two earlier cases from the Utah Supreme Court, and determined that title passes when the elements of boundary by acquiescence are established, even if the dispute is not settled by agreement or court action. Subsequent purchasers are also bound to such title changes, even if the purchase was in good faith, and even if the new purchaser disputed the location of the boundary.