We read a lot in survey literature about unwritten transfer of title and that boundary doctrines like acquiescence transfer title (which I don't buy for a second).
So how about a court decree in a boundary dispute. Many think that the court is the end all and only a court decision makes the boundary line by agreement doctrines good and acceptable.
So, does a court decision in a boundary dispute convey or transfer title to the land to the determined boundary line? Does the decree complete the so called unwritten transfer of title and actually convey land from one party to the other?
"We read a lot in survey literature about unwritten transfer of title and that boundary doctrines like acquiescence transfer title (which I don't buy for a second)."
You don't agree that there are various unwritten methods that convey title, such as acquiescence? Do you "buy" adverse possession? Or estoppel and practical location?
Yes, the court decision creates new title lines...
I suspect that it either extends or retracts the bounds of the existing title. Looking forward to hearing from someone in the know.
jud
no- theoretically, the decree says where the boundary is- is just clears up misunderstandings by others.
Transfer by Judicial Proceedings
Quiet Title Decrees – Court order issued by a State or Federal District Court which
determines title or other interests in real property. In order for a Quiet Title
Decree to be effective, the individuals whose interests in the property are
affected must be properly served.
Divorce Decrees - District Court is empowered with the authority to both vest and
divest title to real property in a divorce proceeding and may include language in
the Divorce Decree which expressly vests title or the court may order litigants to
execute such deeds or other conveyances as are necessary to convey title.
Adverse Possession – Interests in real property can be conveyed under some
circumstances, simply by possessing the property and claiming ownership.
However, a recorded court decree is required to confirm title by adverse
possession.
Accretion and Reliction – Change in the location of a stream or river may result in
the enlargement of an adjacent parcel of land through accretion or reliction. This
will rarely result in a recorded document since the boundary changes with the
change in the body of water. Chances are it will ultimately develop into a
dispute that can only be settled by a boundary line agreement or a Quiet Title
decree.
Bankruptcy – An order of the bankruptcy court is required to approve any
conveyance of property out of the bankruptcy estate.
Transfer by Government Action
Condemnation - Government has the authority under eminent domain to take or
conscript private property for public use, however the government can take
property only for a legislated public purpose and the owner of the property must
be fairly compensated for the property. Can be done through agreement with the
landowner or through condemnation proceedings in the court.
Escheat – Property is abandoned or the owner dies without leaving heirs or other
successors and no person or entity can be found to claim ownership. As a final
resort, the title to such property passes to the State.
Dedication – Found on a subdivision plat, dedication means that the owner of a
property is conveying the property or a portion thereof to the public
(government) for public use. The subdivision plat, when approved by the proper
governmental authority constitutes acceptance of the dedicated property.
I was an expert witness in a boundary dispute in 1985. The judge got so tired of dealing with an incompetent attorney on one side and a lunatic landowner (he burned down the neighbor's fence accidentally, twice!) that he stated "The fence lines are the property lines!", banged his gavel, and walked out of the courtroom. Since the fence in question was only ashes no one knew what to make of his statement. My client never asked me to do anything else for him. I drive past those parcels occasionally, and I have never seen a new fence, so I suppose he solved the problem. The court proceedings were never recorded by anyone, and the parcel descriptions are the same as they were in 1986.
Many judges in the lower courts believe the fence is always the ownership line and have no, "it depends", training. Many lawyers also have that imbedded in their minds. Took me a while to come to the conclusion that the law I learned in school only applied in the upper courts and the lower courts were pot luck. That is when I came to the conclusion that all boundary surveys must have a narrative of what was found, held and rejected and why. Have a complete record on the drawing and if it gets introduced as evidence, then the upper courts will have all the pertinent data to base their decision on instead of just what the lower courts allowed in as evidence to consider.
jud
Most of your examples are not boundary disputes or ripening of the so-called unwritten title transfers believed in by many surveyors. Adverse possession is not a boundary agreement doctrine (may be all botched up in some states).
"...then the upper courts will have all the pertinent data to base their decision on instead of just what the lower courts allowed in as evidence to consider."
A very wise statment
Here's the case that first came to mind.
"Where the location of a true boundary line between coterminous owners is known to either of the parties, or is not uncertain, and is not in dispute, an oral agreement between them purporting to establish another line as the boundary between their properties constitutes an attempt to convey real property in violation of the statute of frauds (I.C. §§ 9-505 and 55-601) and is invalid. But, where the location of the true boundary line is unknown to either of the parties, and is uncertain or in dispute, such coterminous owners may orally agree upon a boundary line. When such an agreement is executed and actual possession is taken under it, the parties and those claiming under them are bound thereby. In such circumstances, an agreement fixing the boundary line is not regarded as a conveyance of any land from one to the other, but merely the location of the respective existing estates and the common boundary of each of the parties. Kunkle v. Clinkingbeard, 66 Idaho 493, 162 P.2d 892; Balmer v. Pollak, 67 Idaho 494, 186 P.2d 217; Clapp v. Churchill, 164 Cal. 741, 130 P. 1061; Tripp v. Bagley, 74 Utah. 57, 276 P. 912, 69 A.L.R. 1417 and Annotation 1433; Fallert v. Hamilton, 109 Cal.App.2d 399, 240 P.2d 1007; Tillinger v. Frisbie, 132 Mont. 583, 318 P.2d 1079; Annotation 113 A.L.R. 425; 11 C.J.S. Boundaries § 77; 8 Am.Jur., Boundaries, § 88."
DOWNING v. BOEHRINGER
349 P.2d 306 (1960)
Surveyors retrace property lines and the like. Lawyers and courts transfer title and make legal determinations on boundary lines. Surveyors comply with those title decisions. We have no real say in title or transfer of title. We do the geometry, they do the transfer.
Under valid agreement or establishment doctrines, there is no transfer of property and no reason for a court to be involved unless the owner of one of the properties decides to no longer live according to the agreement once made. That usually happens when a subsequent owner is told by a surveyor that the obvious and long ago established nearby line of occupation is an encroachment, and does so without any investigation as to how that line came to be.
In matters of title gained by unwritten transfer, the transfer actually occurs the moment all requirements to effect the transfer has occurred. Since it is impossible to pinpoint that moment, it is a matter of interpretation. A court either recognizes that the transfer has occurred at some point prior to when the action to quiet title was brought, or it states that the conditions have not been met and that no title has transferred. The judgment being put into writing and (in most jurisdictions) being recorded staisfies the statute of frauds and perfects the title.
Between the time that all of the requirements of the transfer have been met and the time that the court issues it's ruling in favor of the claim, the transfered title is imperfect, but it exists.
My understanding is that a Court Decree decides with whom the title is vested.
The action can also decide the location of a boundary.
> We read a lot in survey literature about unwritten transfer of title and that boundary doctrines like acquiescence transfer title (which I don't buy for a second).
>
> So how about a court decree in a boundary dispute. Many think that the court is the end all and only a court decision makes the boundary line by agreement doctrines good and acceptable.
>
> So, does a court decision in a boundary dispute convey or transfer title to the land to the determined boundary line? Does the decree complete the so called unwritten transfer of title and actually convey land from one party to the other?
Yes, sort of, subject to appeal in a higher court. But there is still the paperwork to do.
B-)
Good thread. That is how it was explained to me, but wondering how that is written into any articles of conveyance following the decree. Would it be like citing "by ordinance xxx" as in vacations? Would be interesting to see some examples.
Boundary doctrines such as acquiescence do not transfer title. They are a way to settle disputes outside of Court as to the location of the boundary line between the two respective Deeds.
It's a fine distinction but must be understood.
If the Judge rules on the location of the common boundary he has not transferred Title. He has merely made a ruling on the evidence and facts before him.
I hate to add more uncertainty, but it depends on the wording of the decision. There may or may not be a transfer of title or interests in land that could be temporary or permanent. In addition to the regularly considered "doctrines", the courts have the power of equity and are not afraid to use it. And of course the "doctrines" themselves have basis in equity and are therefore anything but certain in how they may be applied in any given situation. Unwritten rights can take many forms, either by exception to the statute of frauds or exclusion from it. Even in adverse possession one could argue that there is no transfer of title; it's merely a case of one giving up their title and another starting a new chain of title on an untitled parcel. I'm not sure what the importance is of whether title has been conveyed or not. The end result is a court order determining the extent of rights in the parties that can be enforced by law enforcement if necessary.
"But there is still the paperwork to do."
And the court rarely, if ever, executes the paperwork or directs the parties involved to do so. Its usually just left hanging...
> We read a lot in survey literature about unwritten transfer of title and that boundary doctrines like acquiescence transfer title (which I don't buy for a second).
>
The "unwritten title transfer" label is a fallacy from the start which has been thrust upon the surveying profession as an excuse for surveyors to pick and choose which type of boundary they are comfortable determining and which they are not. The surveying textbooks seem to approach any boundary that is not described in a duly recorded conveyance document that can be staked on the ground as an "unwritten boundary." This is completely false. The teaching has infiltrated our profession to such depth that it is difficult for us to even comprehend the difference between a boundary location and title. The two have been muddled together to such a degree that we miss the fundamental problem with the question itself.
"Transfer of title" and "boundary doctrines" are two completely separate bodies of law that have no connection with one another. Surveys don't determine "title"; they determine the location of the "boundary" between two contiguous estates. Title (ownership) and the transfer of title is defined by state statutes founded upon the constitutional right of property ownership. Ownership (title) is held in high esteem in our country and the transfer of ownership (title) is made from one owner to a successor. The transfer of ownership is voluntary (unless you consider death as involuntary) with one finely tuned exception - condemnation of private property for public use.
"Boundary" locations are determined by surveyors in accordance with common-law principles and (in some jurisdictions) codified common-law principles. All boundaries are determined by the process of first, gathering the evidence, second, analyzing the evidence, and third, applying the appropriate rule of law (boundary doctrine) to determine the location of the boundary. Every boundary is determined in that manner; no exceptions. Surveyors have been duped into believing that they can only locate "written" boundaries, not "unwritten" boundaries. I haven't found that supposed "law" anywhere during my 36-year career as a student and instructor of boundary law.
> So how about a court decree in a boundary dispute. Many think that the court is the end all and only a court decision makes the boundary line by agreement doctrines good and acceptable.
>
A court "decree in a boundary dispute" would normally be entered as a "declaratory judgment." As a declaratory judgment, the court is simply determining the location of the boundary based upon the evidence presented and the factual finding of its location in accordance with the appropriate rule of law - the same thing that surveyors are expected to do when determining a boundary. The only difference between the surveyor's location and the judge's location is that the judgment is enforceable (you can call the police to enforce it), the surveyor's opinion is not.
When the adjoining landowners have a dispute over their boundary that cannot be resolved by mutual agreement, they may bring their dispute before the court to have the matter settled. The judge will hear the evidence and will make a judicial determination of the location. In the majority of boundary disputes, there is no question of title (ownership). Owner A and owner B are only seeking to determine the location of their boundary which currently divides their ownership. The boundary doesn't determine their ownership, it defines the location or limit of their ownership.
> So, does a court decision in a boundary dispute convey or transfer title to the land to the determined boundary line? Does the decree complete the so called unwritten transfer of title and actually convey land from one party to the other?
>
Again, this question muddles two different issues. The court doesn't own the property, the parties do. The court "in a boundary dispute" simply determines the location of the boundary between the contiguous estates. That isn't a "title" issue, therefore, no transfer of title takes place. The boundary location is simply a determinative action. Filing the judgment of the court in the title records helps to perpetuate the determination, but is not necessarily required in every jurisdiction.
Therefore, no. The decree of a boundary location has nothing to do with a transfer of title (written or unwritten). No title transfer takes place.
Turning our attention to the court decrees which do involve "title" issues, such decrees are typically couched as "quiet title" actions, but other types of actions are used for various problems. A quiet title action resolves any question of ownership of a particular piece of property. The question has nothing to do with the boundary between A and B, but deals with A's ownership of his property against competing claims by predecessors, descendants, heirs, partners, spouses, siblings, or adverse occupants. Improper conveyances, probates, partitions, adverse occupation, and lost deeds are only a few ways that title can be brought to question. Resolution of title issues can involve a variety of methods, however, some reparations require the court's involvement.
Even when the court is involved, the judgment does not "transfer title." The judgment merely recognizes whether title has been transferred under the law and resolves the question of who holds title. Someone already owns the property when they walk into the courtroom. It's the judge's duty to determine "who" owns it and under which rule of law based upon the circumstances.
The common form of quiet title action that surveyors hear of most frequently involves "adverse possession." AP isn't a boundary doctrine and was not designed to settle boundary issues. It was formed as a title doctrine which provides a necessary means to resolve many common title issues which have ripened over time. Many resolutions would not be possible without such a doctrine.
Before you give me too much flack about my position on AP, I will acknowledge that many states have morphed the AP statutes into a boundary resolution process by their misapplication of its intent. There is a form of AP (a typically two-pronged doctrine) which allows for the determination of not only title issues, but the location of the boundaries based upon occupation. Those states which make this application do not require either color of title or payment of taxes which typically defines the second prong (which is commonly viewed as legal theft of property). In my opinion, this misapplication has developed over the years because we've got "title" attorneys trying to solve "boundary" problems.
When the only tool in your belt is a hammer...
JBS
> "But there is still the paperwork to do."
>
> And the court rarely, if ever, executes the paperwork or directs the parties involved to do so. Its usually just left hanging...
Absolutely right, Jim. That's why its so important for surveyors to be involved in the process from start to finish. I've been involved in too many cases where the final decision is handed down and everyone thinks the job is done - only to find out two, three or five years after the fact that no one filed the appropriate documents in the title office. I don't take it for granted anymore. I'll wait a couple of months, then check the records to see if the documents were filed. If not, call the attorney and let them know. Often, it's as simple as going to the courthouse, getting a certified copy of the judgment, and recording it. I've done it myself on two occasions.
JBS
