I visited the Library of Congress Law Library. They have a shelves for each State. On Virginia's shelves they have Michie's Jurisprudence which is a Virginia Legal Encyclopedia produced by Lexis Nexis. It has a short summary of the Virginia Agreed Boundary, Acquiescence, and Estoppel doctrines. Of interest is apparently a Parol Boundary Agreement does not bind subsequent purchasers to the agreement, they may claim up to the true boundary per their Deed, this is different from what usually happens which is these agreements run with the land. They cite a case at footnote 1610 for this which I haven't read, it may tell the rest of the story...
Dave, would not the agreement have to be recorded to satisfy the statute of frauds in order to run with the land? The agreement written about is by parol (oral) agreement. Jp
Jp7191, post: 373818, member: 1617 wrote: Dave, would not the agreement have to be recorded to satisfy the statute of frauds in order to run with the land? The agreement written about is by parol (oral) agreement. Jp
No, since a boundary line agreement does not transfer land but only defines its boundary location it is not within the Statute of Frauds. In fact, some Courts have refused to overturn parol transfers where the parties had notice of the agreement and physical notice exists. The Statute of Frauds is sometimes said to be a shield but not a sword.
The Statute of Frauds requires a transfer of title to be in writing. An agreed boundary is not supposed to be a transfer of title but to give definition to an otherwise uncertain boundary - it makes certain that which was uncertain. Since it is only giving certainty of location to an uncertain boundary, there is no transfer.
The ruling that subsequent owners can only claim up to what their deed describes seems to fly in the face of the Agreed Boundary Doctrine. If the deed clearly and unambiguously identifies a boundary other than what is now recognized, the former agreement was not for the purpose of giving certainty to an uncertain boundary but to redefine the boundary in a place that was mutually agreeable to the parties of that agreement, regardless of where the true boundary existed. That would be a transfer of title.
However, many, including many surveyors and judges get confused about whether or not a boundary is certain and clearly described as being something other than that established by landowners when the points and lines in question are described by dimension only with no calls to any sort of monument. If there are calls to monuments and the recently measured dimensions vary from those recited in the deed, everyone seems to easily understand that surveyed and described dimensions, particularly those of older surveys, can be very unreliable. Conversely, when there are no monuments called for and all there is within the descriptions to work with are dimensions, most seem to presume a level of exactness that was not attainable when the measurements the descriptions were based on were made and is entirely unrealistic.
It could be in such cases that the established and agreed to boundary is in the location of the originally established and measured to boundary, but that the measurements were not of high quality, and that neither the experts, the attorneys, nor the judge in the case accounted for or understood the unreliability of measurements and of deed dimensions based on those measurements.
We all need to understand that if a description is made up of dimensions but lacks any described monuments, it does not clearly and unambiguously describe anything. Dimensions, being proven over and over again as being of questionable reliability, serve only to get one to the vicinity where a corner exists. It is then up to the skilled surveyor to identify the lines & corners existing on the ground. If we have to resort to holding the dimensions, it either means that we failed to find those locations or that all evidence of those locations has been obliterated.
When we resort to holding deed dimensions when surveying a previously established boundary, we are not positively identifying the boundary. We are identifying the location that represents an approximation of where it was based on what little we are left to work with.
I'm really enjoying Brian Portwood's book. He says the Courts focus on Justice, not precision and technical details.
http://www.marls.com/FILES FOR MARLS 2009 WEBSITE/NEW TO POST/MT SC Book Brian Portwood 12.7.11.pdf
Let me say at this point that my intention for this thread was not to make a definitive statement of Virginia Law, of which I know very little. It was to indicate how a researcher might get started. A diligent researcher would obtain and read the cases cited, the authorities cited by those cases and later cases citing the cited cases to find the true story which is probably more complex than indicated by an Encyclopedia entry.
My later responses to this thread are more general in nature. Read your State's legal authorities to find out how they stand up.
Jp7191, post: 373818, member: 1617 wrote: Dave, would not the agreement have to be recorded to satisfy the statute of frauds in order to run with the land? The agreement written about is by parol (oral) agreement. Jp
The statute of frauds requires conveyances of title to be made in writing. Whether or not the writing is recorded or not depends upon the statutory requirements in the individual state. Some states recognize "recording," some recognize a "race to the record" and most recognize a "race or notice."
Oral agreements fixing a boundary agreement are not considered as title conveyances. Each owner owns to their respective boundary in an uncertain location which is fixed by the agreement. The boundary doesn't change other than going from an uncertain (or unknown) location to a location made certain by the agreement.
Most states recognize that the subsequent purchaser is placed on notice of the agreement by the occupation line which arose from the agreement. A "what you saw is what you bought" approach to settling future boundary disputes.
Statute of frauds doesn't apply.
JBS
JBStahl, post: 374002, member: 427 wrote: The statute of frauds requires conveyances of title to be made in writing. Whether or not the writing is recorded or not depends upon the statutory requirements in the individual state. Some states recognize "recording," some recognize a "race to the record" and most recognize a "race or notice."
Oral agreements fixing a boundary agreement are not considered as title conveyances. Each owner owns to their respective boundary in an uncertain location which is fixed by the agreement. The boundary doesn't change other than going from an uncertain (or unknown) location to a location made certain by the agreement.
Most states recognize that the subsequent purchaser is placed on notice of the agreement by the occupation line which arose from the agreement. A "what you saw is what you bought" approach to settling future boundary disputes.
Statute of frauds doesn't apply.
JBS
JB, I was hoping you would weigh in on this one. I thought I learned the statute of frauds thing from you. I guess I flunked that class :). How does it get made a matter of record for the next purchaser of the land? IRA Tillotson in his book Legal Principals of Property Boundary Location...says on page 105 " Take his (surveyors) results to a lawyer and have him formalize and record a title change or boundary agreement, and get copies into both abstracts, you will both lose if a court must resolve your disagreement." Thanks, Jon
Recording the written agreement adds to, and so is a change to the title record, but not a change to the title. The change to the record is just a clarification of what was ambiguous in the record that necessitated the agreement in the first place. Again, no transfer of title, just a clearer definition of the physical limits of existing title.
Jp7191, post: 374084, member: 1617 wrote: JB, I was hoping you would weigh in on this one. I thought I learned the statute of frauds thing from you. I guess I flunked that class :). How does it get made a matter of record for the next purchaser of the land? IRA Tillotson in his book Legal Principals of Property Boundary Location...says on page 105 " Take his (surveyors) results to a lawyer and have him formalize and record a title change or boundary agreement, and get copies into both abstracts, you will both lose if a court must resolve your disagreement." Thanks, Jon
A boundary agreement is essentially a joint affidavit expressed by the adjoining landowners. The affidavit is recorded in the title record and indexed against both parcels. It basically acts as a written agreement (contract) which is binding upon the parties and their successors. Oral agreements (contracts) are just as binding between parties (although more easily challenged when one party denies the terms). In order to make an oral agreement binding upon subsequent purchasers, there must be a physical manifestation of (act to establish) the boundary. The parties must take possession in accordance with the agreement. It's best to have the evidence of an oral agreement converted to a written agreement and duly recorded. Then the subsequent purchasers are on constructive notice by the record.
I would encourage any surveyor who discovers evidence of an oral agreement establishing the boundary to reduce the agreement to writing and have the owners execute the agreement. In the alternative, there's nothing that prevents a surveyor from recording an affidavit perpetuating the evidence. Essentially, that's what happens when a surveyor files a survey (in those states having a filing requirement). The surveyor's opinion whether expressed on a recorded affidavit or on a survey isn't necessarily binding upon the owners, but when "they carry it into effect by actually conforming their occupation to his lines, the action will conclude them. Of course, it is desirable that all such agreements be reduced to writing, but this is not absolutely indispensable if they are carried into effect without." (to quote an old Cooley source).
JBS
