I think Texas and California are states where you can find the "can be ascertained" thing in their law.
"The written instrument shall be signed and acknowledged by each party in the manner required for a conveyance of real property."
Seems to be a hedge. Does the document have to have conveyance language on it's face? Or just the signatures and notary similar to a conveyance deed. It would seem to me that if it is an actual conveyance it would kick in all the things involved in conveying and adjusting parcel boundaries, bring in the lien holders and just generally make a small issue a huge deal.
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.
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> 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.
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> 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.
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> Effective Date: 10-19-1959
I don't see anything in the cited statute that prohibits an oral boundary agreement or requires an agreement to be in writing.
Check out: Gaskill v. Baughman, 2012 Ohio 2130 - Ohio: Court of Appeals, 3rd Appellate Dist. 2012
From Burkitt v. Shepherd, 2006 Ohio 3673 - Ohio: Court of Appeals, 4th Appellate Dist. 2006:
The doctrine of acquiescence is applied in instances when adjoining land owners occupy their respective properties up to a certain line and mutually recognize and treat that line as if it is the boundary that separates their properties. See Robinson v. Armstrong, Guernsey App. No. 03CA12, 2004-Ohio-1463, at ¶35; McConachie v. Meeks (Sep. 21, 1999), Richland App. No. 98CA90; Turpen v. O'Dell (Oct. 14, 1998), Washington App. No. 97CA2300. Acquiescence rests on the practical reality that oftentimes, the true boundary line location is uncertain and neighbors may themselves establish boundaries. Richardson v. Winegardner (Nov. 2, 1999), Allen App. No. 1-99-56. To apply this doctrine: (1) adjoining landowners must treat a specific line as the boundary; and (2) the line must be so treated for a period of years, usually the period required for adverse possession.
Outstanding dialogue!
I now ave a lot more to digest. The question came from someone in Virginia, so I'll be doing a little digging into the respective laws. It was posed as hypothetical but have quizzed a few folks at the title copmany we use and they say they have run into this (will try to get some details).
Of course this scenario was between two clear owners, it would of course be much more complicated if thier were lein holders and fine print on loan documents and succession/types of deeds.
Yes you can get it recorded as an Affidavit of Fact and it will probably bypass review. You can get just about anything recorded as an affidavit if the fee is prepaid.
My post had nothing to do with challenging the legality of such an agreement as the OP mentioned. Once the adjoiners put in place an entirely new monument and memorialize it, they both have new descriptions of their parcels, which descriptions must now rely solely upon the existence and location of the fence as their common boundary. That requires, under law, where I practice, a new description in the next conveyance, prepared by a licensed surveyor.
"That requires, under law, where I practice, a new description in the next conveyance, prepared by a licensed surveyor."
I don't question what you say. For my own enlightenment could you post the law or a reference to where I can get it. I probably can learn something that will help me in the future.
Sure, no problem.
For the rules on who can create descriptions for coveyancing:
http://codes.ohio.gov/orc/4733
And for the local rules for where I practice:
http://www.co.delaware.oh.us/engineer/MapDept/index.htm
Glad to be of any assistance.
Carl,
I'm not understanding why a boundary line agreement would require new descriptions for both parcels. A boundary line adjustment or any other form of conveyance would, but a boundary line agreement is merely one method of locating, on the ground, the boundaries of the existing descriptions, it is not a conveyance, therefore it is not a violation of the statute of frauds.
as far as the question of compliance with regulations, what is to stop a couple of savvy neighbors from creating a BLA so one can build more, then they create another BLA so the other can do the same, then they create another BLA to put the line back where it started.
Check number 19, if those structures don't comply with zoning regulations; you don't get your BLA.
I think maybe spledeus may be referring to an agreement when he writes "BLA" rather than an adjustment. It does get confusing. That's why I usually try to the agreements as a Boundary Line Resolution or BLR. This is the title I record them under as well.
In that respect, he has a good point about neighbors creating BLR's out of thin air when in reality there is no dispute and the line could easily be established if a surveyor is hired. In fact, if someone is attempting this then you have to assume they know where the line is or they would not be trying to move it. I'm confident that the county would review the BLR and likely not allow it...How they go about taking action is a different matter. I have never been on the bad and of a BLR review by the PA so figure they may just withhold permit approvals?
If indeed spledeus is talking about the formal BLA county approved procedure, then they could do as many as they want as long as each time the resulting lots meet all the zoning, setback and critical area requirements. But yikes, with the cost of each iteration being at least $3,500 when you include app fees, and probably more. Not to mention months of review.
The last BLA I did required that; TITLE 18F.70.040.E was satisfied:
E. Required Written Findings and Determinations. The Director's written decision on the boundary line adjustment shall include findings and conclusions, based on the record, to support the decision. A proposed boundary line adjustment shall not be approved unless the Director makes written findings that:
1. The boundary line adjustment complies with the provisions of this Chapter and Title and applicable County codes and state laws;
2. The boundary line adjustment complies with the provisions of the Survey Recording Act;
3. The boundary line adjustment does not result in an increase in the nonconformity of the project site as a whole;
4. The proposed boundary line adjustment is independent and not part of a series of boundary line adjustments that have the effect of altering a recorded plat; and
5. The boundary line adjustment does not negatively impact drainage, water supply, existing sewage disposal, or access.
6. If applicable, a note that states that the lots, once combined, may not qualify to be resubdivided in the future under applicable land use regulations.
7. If applicable, a note that states one single-family dwelling unit has been designated as an accessory dwelling unit.
I thought 4 was a little strange; don't all BLA's alter a recorded plat? When I asked "them" I didn't get a straight answer so I didn't push it. I will probably bring this up again, later.
Doug
They May Be Liable For Fines If They Violated Ordinances
If they did violate a subdivision ordinance, ant action based on it is moot.
Paul in PA
What you describe is questionable.
Apparently no effort has been made to find out where the boundary actually lies? I think the location of the boundary needs to at least be investigated first. Then if it can't be found with certainty the property owners may resolve the problem by fixing the boundary by agreement.
On the other hand, if the boundary can be found but the property owners want to relocate it to their new location then the proper action is to do a boundary line adjustment.
I know what you mean. This is something planning should be doing, but what they want is for us to supply the answers to these questions that they will then review and accept (or not). It's a part that in the past they basically paid no attention to. Since people in general are loathe to re-invent the wheel, I am happy to give them my version of why this is ok and advocate for my client. I just get peeved at the consistency issue. It's hard for me to give clients a good cost estimate if the reviewers keep changing the requirements even though the underlying ordinances have not, and in general these changes mean more work on our part...but that's an issue for another thread...
As for No. 4, my discussions with people familiar with the inner workings of DCD tell me that the concern here was people platting through the BLA process, that is, taking a bunch of larger lots and adjusting them down to smaller (conforming) lots and simply recording easements for access and utilities. They want to be able to control all of this as they would in a formal short or long plat, including engineering design review and conditioning it.
So much of what they are doing is because of fear of creating "un-buildable" lots, which if approved by them, become buildable.
This whole issue of creating a defacto plat without government review or say is what is also driving Kitsap county's attempt to create a BLA ordinance. Thankfully, the local surveyors have been able to squelch this effort, for now anyway.
Does willful/intentional ignorance, by virtue of choosing not to have it surveyed, count as not knowing the location?
OK, then suppose that that there was no pre-existing fence or existing occupational evidence to support the now agreed upon location. It's now two years later and one of the owners dies and the property is sold and the sale uses the title description.
You are now hired to survey the sold property. What line do you stake, the agreement or the title line? What do you show on your map, either or both lines?
I'm just basing my comments on the situation posted by the OP, and how that situation would likely play out where I practice.
What assurance do we have that the original descriptions bear any know relevance to the location of the new fence? None at all. We have the indication that the adjoiner's previous descriptions were ignored for whatever reason.
My comment about needing a surveyor was "sooner or later". Sooner or later one of the adjoiners is going to want to convey title to their parcel. They can't re-use the old superseded descriptions. And they can't use the new description contained in their written agreement about the fence- it wasn't prepared by a licensed surveyor and the preparation of descriptions for conveyance is the practice of land surveying in Ohio, as I have referenced above. So even if a deed can be signed, sealed, and delivered, it's got a serious problem if it can't get recorded.
You're right, it isn't acquiesce, it would be a parole agreement.
This is a good link on the matter: parole agreement
Carl, Your comments would certainly be true in the case of a boundary line adjustment. A boundary line agreement is a whole different animal. I'll address your comments with the stipulation that in the orignal post it is given that the true line is unknown or in dispute and is agreed upon by the adjoiners (boundary line agreement).
> What assurance do we have that the original descriptions bear any know relevance to the location of the new fence? None at all.
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The original description have relevance to the location of the new fence. The new fence IS marking the location of the original description.
>We have the indication that the adjoiner's previous descriptions were ignored for whatever reason.
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The previous descriptions were not ignored. The boundary of the previous description (common line) was legally agreed upon and marked upon the ground by the landowners. See the above referenced cases from Ohio.
> My comment about needing a surveyor was "sooner or later". Sooner or later one of the adjoiners is going to want to convey title to their parcel. They can't re-use the old superseded descriptions. And they can't use the new description contained in their written agreement about the fence- it wasn't prepared by a licensed surveyor and the preparation of descriptions for conveyance is the practice of land surveying in Ohio, as I have referenced above. So even if a deed can be signed, sealed, and delivered, it's got a serious problem if it can't get recorded.
>
There is no need for a "new" description. There were no descriptions that were "superceded", the common line was merely agreed upon and located on the ground. There is no "new" description in the agreement. The agreement merely located the common line of the "old" descriptions on the ground, and I have seen nothing in your codes requiring that a boundary line agreement be drawn up by a licensed surveyor; certainly in the cases I have reviewed, the courts found no flaw because a surveyor was not involved.
The old descriptions are just fine and dandy and can be used to convey title. The agreement (if all requirements are met and the terms carried out by the landowners) is binding on all heirs, successors, and assigns. Hopefully, for the sake of the landowners, if and when "sooner or later" a surveyor shows up, he will understand the law, the situation, and the agreement, and act appropriately.