Two adjoiners are talking over a proposed fenceline. They are not exactly sure where their boundary line is, but agree on a line, and the fence gets built.
Not strange in the least. This is common. Usually the agreement is oral but written is even better.
Have they done a defacto a boundary line adjustment?
No, I agree with the comment that an agreement does not change the deed. It locates the legal boundary.
In effect are they fulfilling the "open and notorious" element of a lot of the acquiescence and adverse possession laws,
I hate to see those two lumped together but it happens all the time by surveyors and lawyers. An agreement is about as far away from the adverse element of possession as it can get IMO.
Yes, it is disturbing that they would not involve a surveyor, Why?
but is there anything to stop them form doing this?
Not at all provided they honestly are uncertain of the location.
It is their property after all.
That's the main concern in the eyes of the law. The court is always in favor of two owners agreeing where the line is. Why on earth would they ever end up in court unless a surveyor upsets the established boundary? And yes, the agreement is binding on subsequent transactions.
Puzzler.
It shouldn't be
Parol not parole
In reading the original post:
"They are not exactly sure where their boundary line is, but agree on a line,"
I'm reading that as indicating that the the original descriptions are either not understandable to them or they are understandable but they are going to ignore them.
Do you read it differently? If so, what do you make of it?
"The original description have relevance to the location of the new fence. The new fence IS marking the location of the original description."
No, the adjoiners have thrown it overboard since they "sre not exactly sure where their boundary line is." There is no reliance at all on the original description. If it was not in question by them they could just build the fence without any need for a further written agreement.
The "given" here is that they are not exactly sure where their common boundary is, regardless of the original descriptions, and they are going to place it somewhere by agreement. If they are not "exactly sure" where their common boundary is it doesn't matter where i practice whether it is a boundary line agreement, a court ordered agreement or whatever. My point has only been, that where I practice, the next conveyance of either parcel will require for redecoration a description for conveyance prepared by a registered surveyor.
I'm sorry if any of the posters have a problem with that concept, but that is how it works around here. Your own mileage may vary.
There are areas where I practice that even an honest surveyor can't locate the line with certainty. We have many metes without bounds descriptions written from section math that have starting points that themselves have never been marked by anything in the record. How do you locate something when even the starting point isn't there. If you throw out the longstanding occupation you have nothing. I'm amazed at what some surveyors can do unilaterally in these situations. They can find what has never been there. So considering the occupation is the first way and some sort of already in place boundary line agreement is the second way. Then you get down to passing quit-claim deeds around the hood or official boundary line adjustments. Yet these neighborhoods are peaceful until somebody wants a survey. For the most part the only people who care that the description is on a natts butt are surveyors. Everybody else has got along for centuries with the mess in the records. You can convey the title just fine without an accurate or precise description. I seriously doubt that descriptions ever will be near perfect, society just doesn't care and its not a high enounh priority to throw the cash at it.
> Does willful/intentional ignorance, by virtue of choosing not to have it surveyed, count as not knowing the location?
It doesn't matter if the deed line could be identified by a survey, only that it is unknown at the time the agreement is made.
yes, an agreement, not an adjustment
as far as the robbing peter to pay paul scenario, i would only reserve such actions for a lawyer or developer
regarding the comment of $3500 per adjustment: I have clients and know of developers who would go through such antics if it meant a bigger and better house. not all of them, most are normal.
First I would tell him "Let me get you a copy of my Standard Hourly Rates".
Then I would tell him that is Legal advice, and would best be answered by an Attorney.
If this situation was encountered during a survey, I would show the recorded line's location, and the agreed upon line location. I would reference both of them, and even use different linetypes.
I have always heard that it is not the surveyor's job to determine ownership. It is the surveyor's job to determine the location of property lines per the best evidence that can be obtained.
Ok Carl, a question. The OP doesn't give us the description, just the result. For argument's sake, what if one description read,
"along a line common to the lands of John Doe to the lands of Bill Smith..."
and the other description read,
"along a line common to the lands of George Johnson to the lands of Bill Smith..."
When the adjoining landowners agree where that line is, why would either description need changed? They don't. That original description is still valid and will still transfer title to those lands just as it did before they agreed where that line was.
Of course, this assumes that those owners don't know where that line is, and that their agreement clarifies that line.
Otherwise, you would have a conveyance. I don't believe either landowner in such a situation intends to convey title to any of their land to the other owner.
"along a line common to the lands of John Doe to the lands of Bill Smith..."
Such a description where I practice would simply be returned at the next attempt at conveyance with a big 'ol rubber stamp in the middle of it which said: "Returned for survey and legal description".
I don't have to agree or disagree with you about it whether you think it is proper or not. My only statement was that it would not qualify for recording where I practice. I can abide by the long established rules here or find some other line of work.
Where you practice, the rules are likely different. I have no problem with whatever the rules are where you practice.
I know those types of descriptions aren't common in many parts of Ohio; I was just trying to keep it simple. The principles are the same though. I was just trying to get an explanation other than "that's the way we do it here". No? Ok.
I'd really like to see a court decision, for my library, supporting your view that a boundary line agreement changes the descriptions of the lands involved.
>> My only statement was that it would not qualify for recording where I practice.
Odd. Who at the County makes this decision concerning the description? Around here the Recorder determines if the form is acceptable (Grantor, Grantee, signatures, etc.), but that's it. You can record your grocery list if you want. I've seen Deeds where the description is a street address, or "all my lands in XX County", or "half of Lot XXX."
Over the decades I've personally recorded deeds with the wrong Grantor, or in the wrong County, or with a description of a completely different parcel the Grantor doesn't own. The effect of such recordations = nil, except for the extreme embarrassment on my part.
Odd. Who at the County makes this decision concerning the description?
A registered surveyor employed by the county reviews all descriptions for compliance- for example with State of Ohio Minimum Standards for boundary surveys:
http://codes.ohio.gov/oac/4733-37
The Administrative Code contains additional provisions. This is just one:
http://codes.ohio.gov/oac/4733-37-04