NOTE: This summary is very simplified, and is provided for informational purposes. If you have questions on this topic in relation to a dispute with a local government or condemning entity, please contact The Office of the Property Rights Ombudsman. If you need legal advice in a private civil matter, you are encouraged to seek out a licensed attorney who can advise you of your legal options or represent you in a civil action.
On occasion, the exact location of a property’s boundary may be disputed by the owners. Over time, inaccurate measurements and forgotten understandings can lead to confusion over where a boundary should be. Ideally, such disputes should be avoided altogether through accurate measurements and professional property surveys. In reality, however, there are various circumstances where a legal property boundary is called into question. A disputed boundary between two properties can be settled by agreement of the neighboring property owners, or else by legal action in district court. The Utah Supreme Court has developed very clear rules to help resolve boundary disputes, as explained in Bahr v. Imus, 2011 UT 19 .
The Boundary by Acquiescence theory provides that a long-standing marker indicating where property owners understand a boundary to be located becomes the actual boundary, even if a survey places it elsewhere. Boundary by Acquiescence is shown by proving all of the following:
(1) a visible line marked by monuments, fences, buildings, or natural features treated as a boundary;
(2) the claimant’s occupation of his or her property up to the visible line such that it would give a reasonable landowner notice that the claimant is using the line as a boundary;
(3) mutual acquiescence in the line as a boundary by adjoining landowners;
(4) for a period of at least 20 years.
It is not necessary that the owners formally agree that the monument marks the property boundary; acceptance or acquiescence is sufficient. This can be shown by the actions of the property owners regarding the location of the boundary.
The disputed property must be actually occupied or used. Merely claiming ownership is not sufficient.
Utah Supreme Court Opinions on Boundary by Acquiescence:
Essential Botanical Farms, LC v. Kay, 2011 UT 71 — Boundary by Acquiescence elements must be proven by “clear and convincing evidence.”
Q-2, LLC v. Hughes, 2016 UT 8 — Title to disputed property passes when the elements of boundary by acquiescence are established, even if the dispute is not resolved by agreement or a court action at that time.
Anderson v. Fautin, 2016 UT 22 — Discusses and clarifies certain terms of the Boundary by Acquiescence doctrine.
Settling Boundary Disputes Using Utah’s Boundary by Acquiescence Doctrine — This Article was written by Elliot R. Lawrence, an Attorney with the Office of the Property Rights Ombudsman. It was published in the November/December 2014 issue of the Utah Bar Journal.
Boundary by Agreement honors verbal or unrecorded agreements made to settle a property boundary. In order to claim a boundary by agreement, the following elements must be shown:
- An agreement between adjoining land owners;
- Settling a boundary line that is uncertain or in dispute;
- A showing that injury would occur if the agreement were not upheld.
In order to bind successor owners to the same agreement, it must be shown that the agreed-upon boundary was marked or clearly identified so that a purchaser would be on notice of the boundary’s location.
The policy underlying the estoppel theory is to prevent injustice and injury to property owners who rely upon representations regarding property lines. A property owner may claim a boundary by estoppel by proving the following:
- An affirmative admission, representation, or act regarding placement of the boundary which is inconsistent with the claim afterward asserted;
- Action by the other property owner in reasonable reliance on that representation;
- Injury to the other property owner which would result if the first party contradicted the representation.
The representation regarding the placement of the boundary must be affirmative—an implied or inferred representation is not sufficient.