I think Jim Frame brings up a really interesting question below. I don't recall seeing the issue brought forth in the Case Law but then I haven't read every case published either.
Suppose A and B are neighbors and the boundary is objectively certain. There is no fence. They decide to build a fence and treat it as their common boundary. They discuss getting a Survey but decide it's too expensive. A owes under a Deed of Trust and B owes a Deed of Trust. In California, the Trustee holds the title in trust, when the loan is paid off then the title is reconveyed back to the owner or if the owner defaults then the trustee forecloses and sells the property, proceeds go to the beneficiary (I may not have the details exactly right but it doesn't matter).
So A and B build their fence and use it as the boundary such that it meets the requirements of the Doctrines but they have no dispute so there is no litigation between them. Next B defaults on his loan and it is foreclosed. The property is sold to C in the foreclosure sale. I wonder if C could successfully claim that B didn't have the authority to agree with A on other than the objectively certain boundary?
The common parties to these cases are:
1. The parties that made the agreement (obviously there is a dispute that there really was an agreement but sometimes the Courts will accept one party's testimony on the existence of the agreement).
2. One of the parties that made the agreement in a lawsuit with the successor to the other agreeing party. If valid these agreements attach themselves to the Deed, maybe this could be a plot line for a bad monster movie.
3. Less common is the parties are successors to the original agreeing parties.
I have a list of unpublished cases to get at the Law Library. These are relatively recent cases, all since 1994 and most more recent. I will look for this issue and see if it pops up.
I am talking about subjective uncertainty here which is a weird exception to the Statute of Frauds. Even though their Agreement amounts to a Lot Line Adjustment, they didn't know they were moving the boundary so they aren't exchanging land. It's a bit of a weird loophole that has creeped into our Boundary Law. What you don't know can't hurt you sort of thing.
> I think Jim Frame brings up a really interesting question below. I don't recall seeing the issue brought forth in the Case Law but then I haven't read every case published either.
>
> Suppose A and B are neighbors and the boundary is objectively certain. There is no fence. They decide to build a fence and treat it as their common boundary. They discuss getting a Survey but decide it's too expensive.
Would I be right that you agree that in the case of a boundary that is objectively certain, a foreclosure would vaporize any agreements to which the lender was not a party that were made during the term of the conveyance in trust?
In the situation where the boundary was objectively uncertain, the best test is probably what the lender might think themselves likely to gain vs. the costs of pursuing it. It's the practical test.
One relevant question that occurs to me is what remedies there are in California for the owner of a residential lot that is rendered non-conforming because of some "agreement" that he is alleged to have have made as to its boundaries as the result of some fence construction.
If there is some minimum width in a local jurisdiction and it is claimed that one of the lot owners has agreed himself out of that minimum width, how does he end up with a buildable lot to sell to some future purchaser who wants to tear down the modest house on the property and construct something new upon it? Presumably claiming that his verbal agreement with the adjoining owner didn't affect the actual location of one boundary of his lot won't persuade the folks in planning and zoning, right?
The deed of trust transfers title to a trustee but not the possession. So who has domain over the boundaries?
> The deed of trust transfers title to a trustee but not the possession. So who has domain over the boundaries?
The trustee does. Arguably, by executing the deed of trust with a certain description of the land, the borrower is estopped from claiming that he doesn't know where the boundaries of the land are. They are as represented to the lender and that requires the lender's concurrence in some subsequent boundary agreement.
Is a boundaries location established as represented by a document or does it require more? I'm just trying to sort this out. If the boundary location is not established, then who can make an agreement to establish the boundary location? Is it the trustee of the title or the beneficiary/debtor with the possession. I'm just generally thinking here, the actual trust deed contract might spell this out and it the might vary.
There is more than just a lender and debtor here with an uncertain boundary. There is also an adjoiner. Because there is a deed of trust on the neighbor is this adjoiner denied the right to fix the location of his boundary? What if the requirements for acquiescence where fulfilled along an old fence. If a dispute arose would you sue the trustee, the debtor or both?
I've never read a case where the dispute was with the trustee or mortgage holder but that doesn't mean there aren't plenty.
> Is a boundaries location established as represented by a document or does it require more?
Well, if the residential lot, for example, is described in the deed of trust as having 50 ft. of frontage on some street and the borrower later decides to agree to a location that only gives 46 ft. of frontage, don't you think the lender should have been a party to give that supposed agreement effect?
Yeah, but that kind of agreement is a boundary adjustment. Got to get all interests involved to make a written conveyance. What about if the facts appear to establish the line by acquiescence, the debtor objects and the adjoiner starts a lawsuit. Does he need to sue the trustee also? Hey, I really don't know just wondering. Or can't he sue at all because of the deed of trust?
> What about if the facts appear to establish the line by acquiescence, the debtor objects and the adjoiner starts a lawsuit. Does he need to sue the trustee also?
Sure, of course he does. Otherwise, he spends a ton of money litigating the issue only to discover after a foreclosure that the judgment he got at great expense was only good against the borrower who no longer owns the property.
> The trustee does. Arguably, by executing the deed of trust with a certain description of the land, the borrower is estopped from claiming that he doesn't know where the boundaries of the land are. They are as represented to the lender and that requires the lender's concurrence in some subsequent boundary agreement.
I'm sure you have case cites to back up your assertions.
> Sure, of course he does. Otherwise, he spends a ton of money litigating the issue only to discover after a foreclosure that the judgment he got at great expense was only good against the borrower who no longer owns the property.
Again, please cite some cases to back up your position.
The trustee has legal title and the borrower has equitable title and possession. So neither has all the title. So if the question is where is the boundary and not who has title is it the legal title holder, the equitable title holder with possession or the both subject to implied agreements? An implied agreement or acquiescence also requires long time treatment of some visible object like a fence as the boundary so its not some willy nilly agreement between a couple of landowners to defraud the lender and relocate the boundary. If the boundary location is established it's along the fence not at some convenient location the adjoiners cook up. So I'd expect the trust deed doesn't prevent the implied agreement from occurring but I don't really know for sure. The trustee doesn't seem to show up as a party in the court cases I've read.
I would think it would be treated much like the case of adverse possession against a life tenant. The general rule is that adverse possession may be gained against only those with a possessory interest (they are the only ones that can bring an action of ejectment). So, one can get clear title by adverse possession against a life tenant. But, as soon as that tenant dies, title reverts to the true owner by deed and the statutory time starts over. That is because the true owner did not have possessory interest and had no right to object to the use during that time.
I think the same would apply to any agreements about possession limits. Again, to make it stick you have to have a court battle wherein the other interested party is notified and given an opportunity to defend their rights (even if they are future rights), or a written agreement that they have an opportunity to weigh in on.
In jurisdictions that uphold the agreement, the other interested parties will generally have a remedy for damages under the doctrine of "waste". They would recover for diminished value of the property, if any.
I know there are those who are not going to like the above, but that's the way it is. I'll be interested to see what you come up with for CA deed of trust. It's all about balancing interests and there are different approaches.
Great discussion. Wish I had something to contribute. The effect mortgages have on legal maneuvers regarding property has been on my mind for a while.
In a similar vein, how about properties with owners with undivided interests?
> > Sure, of course he does. Otherwise, he spends a ton of money litigating the issue only to discover after a foreclosure that the judgment he got at great expense was only good against the borrower who no longer owns the property.
>
> Again, please cite some cases to back up your position.
Well, isn't the question what the duties of a mortgagor are and what the effect of a foreclosure is as far as contracts and conveyances entered into by a mortgagor without the consent of the mortgagee?
I don't know for sure if they would vaporize. If there are no foreclosures when the litigation starts the plaintiff usually names Does 1 through 10 so that may extinguish the rights of the Trustees.
I think the lenders are usually fat, dumb and happy on the state of the property. They don't have an emotional connection to the property so it is just business to them. They are probably less likely to pursue litigation due to the expense.
In certain circumstances it is not a boundary adjustment especially if the owners didn't know where the boundaries are located.
A mortgage is a two party instrument which I don't think transfers title to the lender.
> > The trustee does. Arguably, by executing the deed of trust with a certain description of the land, the borrower is estopped from claiming that he doesn't know where the boundaries of the land are. They are as represented to the lender and that requires the lender's concurrence in some subsequent boundary agreement.
>
> I'm sure you have case cites to back up your assertions.
I'd say it probably falls under the general category of the duties of mortgagors and the enforceability of contracts regarding land subject to a mortgage when only the mortgagor is a party to the contract. After all, isn't a boundary agreement in essence a contract?
> Is a boundaries location established as represented by a document or does it require more? I'm just trying to sort this out. If the boundary location is not established, then who can make an agreement to establish the boundary location?
Okay, I may be bringing up something that you guy's have already gotten past, but the primary factor I read in Black's Law and other sources is that the main element of a "legal description" is that it can be findable on the ground. (Sorry, I don't think findable is a word, but how about locatable oops...spellchecker doesn't like that either).
Anyway,
I have seen (many) descriptions that I would consider to have ambiguous elements within the for corners of the document, and I have seen some that I would argue are absolutely "inadequate", to the extent that two competent and reasonable surveyors could come to two completely different conclusions. But, having said that, wouldn't you think that your first presumption is that a boundary's location could be established on the ground by a document? Wouldn't that amount to "objective certainty" if there is nothing else on the ground to dispute it?