Boundary hypothetical

Sounds like a Boundary Line Agreement to me. They haven't adjusted their Legals, but agree to the new fence.

> Two adjoiners are talking over a proposed fenceline. They are not exactly sure where thier boundary line is, but agree on a line, and the fence gets built. But before the fence goes up, they write up an agreement, both sign it, they get it notarized, and both have a copy.

It depends on what the agreement says. Let's assume this is waterfront property and the deed line is actually 10 feet away. A good lawyer will be able to throw out a poorly written agreement, when it comes to that.

> Have they done a defacto a boundary line adjustment? Sure there are recording and permit reprecussions in some cities and counties, but am intrigued by the legal side of it. In effect are they fulfiulling the "open and notorious" element of a lot of the aquiessence and adverse posession laws, if there ever was to be a question of boundary before a court in the future?

Let's say this is in a low rent area; it's all fun and games until someone wants to make some improvements. If the property doesn't meet code, it doesn't matter anyway.

> Yes, it is disturbing that they would not involve a surveyor, but is there anyting to stop them form doing this? It is thier property after all.

Yes, it is their property, and someday it will be somebody else's. It could be just about anybody and somebody is not going to like it, you can count on that.

Best to get it surveyed, that way you can sue them if there are problems...:snarky:

"They are not exactly sure where their boundary line is"

That’s key. If they don't know where there line is they can agree to a reasonable line. In this case it just establishes the location of the boundary, doesn't change the description or convey any real estate.

If they do know where the line is or in some jurisdictions the line can be ascertained then moving the line would be a boundary line adjustment, thus a conveyance requiring written and recorded conveyance documents to the new line (plus all the government approvals and such).

It's fairly easy once you learn how to search the law in your jurisdiction to get the real answer to your question in your state. Google Scholar will get you a lot including appellate court opinions.

What you are describing is a boundary by agreement and it would likely be the true line from that point on. It is critical that neither party know where the deed line is prior to the agreement. If they do know where the deed line is the agreed line is merely a line of convenience, and ownership is not affected.

That is, in a common law jurisdiction. These principles are usually not operative in a Torrens Title juridiction, which I think Ontario is, no?

> Two adjoiners are talking over a proposed fenceline. They are not exactly sure where thier boundary line is, but agree on a line, and the fence gets built. But before the fence goes up, they write up an agreement, both sign it, they get it notarized, and both have a copy.
>

It depends on what was written into and agreed upon in agreement. If it basically says that their common line is uncertain or in dispute, and that both parties agree that line designated and represented by the fence location is their common line and that both parties acknowledge the location as the extent of their respective ownerships forever more, then that agreed upon location IS their common boundary.

> Have they done a defacto a boundary line adjustment?
>

No. They have performed a boundary line agreement. A boundary line adjustment moves the boundary from a known location to another location. It is a change in the "what is the boundary", whereas an agreement only indentifies "where the boundary is located".

>Sure there are recording and permit reprecussions in some cities and counties, but am intrigued by the legal side of it. In effect are they fulfiulling the "open and notorious" element of a lot of the aquiessence and adverse posession laws, if there ever was to be a question of boundary before a court in the future?
>

For a true boundary line agreement there is no permit or regulatory repercussions. They have not changed their boundary, only "found" it. It is a valid method of boundary line determination recognized by the courts. It is not an adverse possession case.

> Yes, it is disturbing that they would not involve a surveyor, but is there anyting to stop them form doing this? It is thier property after all.
>
> Puzzler.

Not puzzling at all. The landowners have the power to find their common line. They can do this by themselves, they can hire a surveyor, or they can let the judiciary process decide it. It is their choice, because it is their property.

Yes, that would be a de facto boundary line agreement. De jure?..probably not in the eyes of title examiners. Meaning that neither estate really gained (or retained) clear and marketable title to anything other than their original holdings. That smells like a Quiet Title Action in the making.

I'm not saying that the agreement wouldn't prevail if contested, it probably would. But I believe it places a cloud on both titles. The wording of their agreement would need to be impeccably precise..which I believe would be difficult without the original boundary location being known.

I would think that 10 years would have to pass (RCW 4.16.020), but at that point the written document would be evidence of acquiescence. IF the document said that they were building a fence, and intended to move it upon any future survey...different story...here is the law here in WA.

_{RCW58.04.007
Whenever a point or line determining the boundary between two or more parcels of real property cannot be identified from the existing public record, monuments, and landmarks, or is in dispute, the landowners affected by the determination of the point or line may resolve any dispute and fix the boundary point or line by one of the following procedures:}

(1) If all of the affected landowners agree to a description and marking of a point or line determining a boundary, they shall document the agreement in a written instrument, using appropriate legal descriptions and including a survey map, filed in accordance with chapter 58.09 RCW. The written instrument shall be signed and acknowledged by each party in the manner required for a conveyance of real property. The agreement is binding upon the parties, their successors, assigns, heirs and devisees and runs with the land. The agreement shall be recorded with the real estate records in the county or counties in which the affected parcels of real estate or any portion of them is located;

I would have to respectfully disagree Mr. Cash. A boundary line agreement only serves to establish a boundary heretofore unknown. It has no effect on title, only boundary.

I don't doubt the adjoiners have the legal right to reach an such agreement.

But around here they are going to need a surveyor sooner or later, probably about the time they want to get the agreement with it's new description into the the chain of title.

That’s key. If they don't know where there line is they can agree to a reasonable line. In this case it just establishes the location of the boundary, doesn't change the description or convey any real estate.

I would agree that it establishes the boundary between these two owners, but if one of them sells it would not transfer to the following owner, barring some further agreement or documentation. Also, what happens if there are mortgages on one or both properties?

If they do know where the line is or in some jurisdictions the line can be ascertained then moving the line would be a boundary line adjustment, thus a conveyance requiring written and recorded conveyance documents to the new line (plus all the government approvals and such).

IMHO, the key here is "can be ascertained". What do we mean by this? Does the act of affirmatively NOT having it surveyed (or re-surveyed for those that insist that all parcels have been surveyed) make it unknown? So then any time you wish to adjust your common boundary you simply decide not to have it surveyed and make up an agreement? Is there so amount of acerage or difference from the deed that would make it obviously an adjustment, and who gets to decide this?

Here we have a state law allowing agreements when lines are "In dispute or Unknown". It requires the services of an LS and an agreement meeting the requirements of a conveyance and a map (plat for those that call a survey map that) must be recorded showing the staked agreed line, resulting descriptions and recording number of the agreement. This is most often quicker and much less expensive then going through the formal City or County BLA process and I will recommend it every time if it can be argued that there is a dispute. Even still, the required map is reviewed by the Prosecuting Attorney's Office before the Auditor will record them.

The agreement shouldn't change the description and require a new one. The agreement should clarify on the ground what the original description describes. If it required a new description, it would be a boundary line adjustment, not an agreement.

Here's a Washington state case I found after a short search:

"We will uphold an agreed common boundary if:

(3) the line is physically designated on the ground; and (4) the parties use and possess the property so as to give constructive notice to future purchasers or give actual notice. Johnston v. Monahan, 2 Wn. App. 452, 457, 469 P.2d 930 (1970). In its oral opinion, the court laid out the specific findings that support an agreed boundary here. We agree that the findings establish the elements of a parol boundary agreement."
Suydam v. McNaughton, Wash: Court of Appeals, 3rd Div. 2007

Here's more with many internal citations:
VITOUS v. Harper, Wash: Court of Appeals, 2nd Div. 2008
Johnston v. Monahan, 469 P. 2d 930 - Wash: Court of Appeals, 2nd Div. 1970

One must become familiar with the state laws and court decisions where they practice.

You may be completely correct about that- where you practice. It would never meet state standards or be approved for recording here.

>I would agree that it establishes the boundary between these two owners, but if one of them sells it would not transfer to the following owner, barring some further agreement or documentation. Also, what happens if there are mortgages on one or both properties?

It either establishes the line or it does not. It can't do it for the present owners and not for someone else now or in the future.

Title and boundary are separate issues. The mortgage holder or future purchaser is dealing with the same parcel, wherever its limits are. They wouldn't know where the limits are on the ground if the present owner doesn't, and do know if the present owners mark it.

I do work in Ohio, among other places. A boundary line agreement is a boundary line agreement. (I am really not trying to be a smart-a$$, but I know it sounds like I am. Sorry.)

I am just saying that this goes back to there being a difference between title and property boundaries. A boundary line agreement doesn't change anything; only clarifies the unknown. A boundary line adjustment does change the record and would have to meet additional standards/requirements.

Ohio Revised Code 5301.21

5301.21 Adjoining owners may fix corner or line.

When the owners of adjoining tracts of land, or of lots in a municipal corporation, agree upon the site of a corner or line common to such tracts or lots, in a written instrument containing a pertinent description thereof, either with or without a plat, executed, acknowledged, and recorded as are deeds, such corner or line thenceforth shall be established as between the parties to such agreement, and all persons subsequently deriving title from them.

Such agreement must be recorded by the county recorder, in the book in his office in which surveys are recorded. The original agreement, after being so recorded, or a certified copy thereof from the record, is competent evidence in any court in this state against a party thereto, or persons in privity with him.

When a tract of land is owned by the state, the officer or board having administrative control thereof, with the approval of the attorney general, may execute said written instrument and following recording in the county where the land is situated, said instrument shall be filed with the auditor of state with the evidence of title to the land affected.

Effective Date: 10-19-1959

I would bet that Richard Schaut is watching this thread with great interest, and would be very happy to see how many people agree with him.

Ohio Revised Code 5301.21

That's an interesting statute. It says agreement without specifically saying conveyance. I'd like to see some actual ones that have been recorded with the surveys to see how that are done in practice. I have plans for legislation in my state which is in dire need for some solutions.

A boundary line agreement can be recorded as an affidavit. Not being a conveyance it doesn't need to be in the form of a deed. There wouldn't be any need for state standards as far as surveying goes, it may not even need to be surveyed. If a surveyor is involved then the state standards for the survey work would probably apply.