These cases come in different flavors. A fence that has been in place for decades we might call the best evidence of the original boundary (where the monuments are missing) and the Court might call it acquiescence.
I do have a Fresno County case where the owners agreed to a boundary based on using the wrong iron stake in a subdivision and the "property gainer" had built improvements in reliance on the boundary so the Court upheld the Agreed Boundary Doctrine applied although the statute had not run yet. There is an exception to the Statute of Limitations for substantial loss.
> A mortgage is a two party instrument which I don't think transfers title to the lender.
Except that various acts such as attempts to convey the property by the mortgagor or contracts entered into regarding the land would not ordinarily survive a foreclosure under a Deed of Trust that some third party had notice of (i.e., it was properly recorded).
That is a good question about undivided interests. At least in the case of husband/wife the Courts here have ruled that the husband acted as an agent for both so wouldn't let the wife out of the agreement after he was deceased even though she didn't know about it.
> 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?
Bingo! That is true IF there is a conveyance. However, if the requirements of a boundary LOCATION doctrine have been met there IS NO CONVEYANCE. Therefore the title has not been affected, therefore the mortgage holder plays no role and is not affected by the establishment of the boundary on the ground, other than all future owners are bound by the boundary established on the ground with notice.
I think a mortgage and a trust deed are similar in that both transfer the legal title to a trustee and the equitable title and possession remain with the debtor. There is a difference in how the foreclosure takes place in case of default. The mortgage is a judicial foreclosure and the trust deed is just a transfer of the legal title to the lender. The judicial foreclosure transfers all the title to the lender. There may still remain some issues over the equitable title in a trust deed foreclosure that need to be cleared up before the lender can sell the property with clear title. The simple transfer of the legal title is easier than a judicial foreclosure so that be one reason to use a trust deed instead of a mortgage. How this all effects and implied boundary agreement is a great question.
Yeah, but that is not an implied agreement, that's an oral agreement or a written agreement. I'd think if you are doing a written or oral agreement then all the interests need to be at least informed.
It's a little different here.
Our case law is calling everything an agreement I assume in contract. In times past the agreement operated in law similar to Acquiescence. The current trend is towards "there must be evidence of an agreement." Our controlling case of Bryant v. Blevins is a somewhat confusing mess which may allow for an inferred agreement in some cases (e.g. No evidence of disagreement=agreement which is the old standard).
Yeah, I spaced that. You can't have an implied agreement without objective evidence that the parties were uncertain as to the location of the boundary. Everybody dies and the implied agreement along with them. It's not that way in my state.
> 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.
>
Exactly. It's never brought up in court cases because it's never been an issue. Why should we think it is? Because we've not grasped the conceptual differences between matters of "title" and matters of "boundaries." They are two separate and distinct bodies of law. Before undertaking this debate, I would really like to find one single court case where a foreclosure action was claimed to have undermined a mutual agreement with a neighbor to establish a common boundary. I've never seen one or heard of one. The question is frequently raised during conference presentations, but I've never seen where it's been an issue. Why is it not an issue?
The owner's possession of the property and the acts that follow that possession are what comprises the body of evidence used to determine the location of the boundaries. The acts of possession establish the boundaries. Title law does not determine boundary locations.
Title to property is a completely separate body of law strictly governed by statute. Every state has the statutes which govern title and the conveyance of title. The question of title answers only "who" has "what" rights in the property. It doesn't answer "where" the extent of the title is located.
> 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).
>
It is important to understand that "title" is comprised of three separate elements. The unity of those elements is considered "complete title." One must hold all three to claim they hold "complete title."
Bouvier explained that “complete title” is comprised of three parts: 1) mere possession or actual occupation of the estate, without any apparent right, 2) the right of possession, which may reside in one man, while the actual possession is not in himself; he may have an apparent right of possession which may be defeated, or an actual right of possession which will stand any test, and 3) the right of property without either possession or the right of possession. Bouvier described the unity of the three parts as “perfect title” (Bouvier, J. A Law Dictionary Adapted to the Constitution and Laws of the United States of America (1843) p. 567).
The holder of the trust deed (the lender) holds the "right of property," not the "right of possession" or the "actual possession." The right to determine the limits of the possession (the boundary location) therefore resides in the party holding the "actual possession" and/or the "right of possession." The lender, prior to a foreclosure, does not hold any right to possess, therefore, they can conduct no actions with regard to the boundary. The parties holding the right of possession are the only ones who can effectively agree to establish the boundaries.
> 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?
>
Again, I've never seen any case where the lender tried to undo a boundary agreement entered into by the beneficiary of the trust (the possessor). I would surmise, from the above, that the answer is NO. C would be bound by the actions of A and B in the same way that the lender or a subsequent purchaser would be. The limits of the right of possession at the time of the foreclosure would have been determined by A and B prior to the foreclosure action which merely transfers the "right of possession" and the "actual possession" to the lender. At the time of the foreclosure and sale to C, the actual notice of the possession is in place and the duty to discover the limit of the title (the boundary location) arises prior to the purchase by C.
The parties in possession have the right to establish the limit of their possession. Once that possession is legally established, subsequent purchasers are subject to the legally established boundary.
JBS
> > 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.
The trustee (the lender) only holds the "right of property." They have no "right of possession," nor do they have any "actual possession." The "right of property" does not include the right to establish the boundary location (the limit of possession). The right to establish the boundary location is a right associated with the one taking possession.
What is represented to the lender is the "right of property" which is only one third of the property rights necessary to perfect title to the property. The representation made to the lender is that the borrower "is lawfully seised of the estate hereby conveyed and has the right to grant, convey and warrant the Property...". That's title law and the law of conveyancing. The "what" is defined by the conveyance; the "where" is defined by the acts of possession.
JBS
> These cases come in different flavors. A fence that has been in place for decades we might call the best evidence of the original boundary (where the monuments are missing) and the Court might call it acquiescence.
>
> I do have a Fresno County case where the owners agreed to a boundary based on using the wrong iron stake in a subdivision and the "property gainer" had built improvements in reliance on the boundary so the Court upheld the Agreed Boundary Doctrine applied although the statute had not run yet. There is an exception to the Statute of Limitations for substantial loss.
Yes. The doctrine of "equitable estoppel" or "estoppel in pais" has no time limit associated with the statute of limitations. Instead, the courts look to the evidence of the improvements and the damage caused by a change of representations made regarding the boundary. There is no time element to consider.
JBS
> > 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?
>
> Bingo! That is true IF there is a conveyance. However, if the requirements of a boundary LOCATION doctrine have been met there IS NO CONVEYANCE. Therefore the title has not been affected, therefore the mortgage holder plays no role and is not affected by the establishment of the boundary on the ground, other than all future owners are bound by the boundary established on the ground with notice.
Except that overlooks two points. The first is that agreements as to boundaries are in effect contracts that would not be enforceable against the holder of a superior lien after a foreclosure, right? The second is that many verbal agreements as to boundaries may be seen as detrimental by that lienholder. This would be particularly true where there are winners and losers and the foreclosed property is the one that lost frontage or area.
> I think a mortgage and a trust deed are similar in that both transfer the legal title to a trustee and the equitable title and possession remain with the debtor.
Typically, a Deed of Trust is the instrument of enforcement of a security lien against real property created by a note. The priority of liens is what determines superior title. So, when the superior lienholder isn't a party to agreements about real property, such as boundary agreements, the lienholder isn't bound by them.
Sometimes yes and sometimes no.
It's not easy to figure out what they are trying to say in Bryant.
> I think a mortgage and a trust deed are similar in that both transfer the legal title to a trustee and the equitable title and possession remain with the debtor.
There is a distinct difference between a mortgage and a trust deed. A mortgage acts as a lien against the property (a real property interest). If the terms of the mortgage are broken, the mortgagor can foreclose against the property through a judicial process which transfers complete title to the mortgagor. Prior to the foreclosure, the mortgagor does not hold any property rights.
A trust deed, on the other hand, does convey property rights to the lender. The trustee (the lender) holds the "right of property" but holds no "right of possession" or "actual possession" to the property. The foreclosure action for a trust deed merely perfects the title by merging the "right of possession" and "actual possession" with the "right of property."
JBS
Sorry but that is not the law. The lender has a future possessory interest in the property. If they don't sign off, and the future interest is realized, they are not bound by the agreement. You are simply not seeing this in the court decisions about agreed boundaries because in court the lenders (if any)are notified and typically decide not to participate. But they have been offered the chance and declined, so they are bound by whatever decision is handed down. But I'm sure there are cases where they have participated on one side or another (could be for or against regardless of which parcel the loan is on). You might have to look close at who the "et al." is referring to in the decisions.
Again, not necessarily the law. Regarding mortgages, there are lien theory and title theory States. Either way, the mortgagee has a right to participate in boundary line agreements if they so choose.
I am not trying to cause trouble or debate anyone.
I am trying to understand these concepts. The way to do this is pose fact sets and see what the answers might be.
My boundary education is probably typical. It consisted of a couple of college courses which used a certain 1/2" thick book, national in scope, which has only been updated 5 or 6 times in the past 6 decades. Most legal treatises are updated once a year, that is why they come in binders.
I think Land Surveyors should have a broader legal education in title and boundary concepts.
I don't believe that there will be many if any cases where the lender will get involved in a boundary line agreement. For the lender to even know and probably care about the agreement a series of events will need to occur.
First one of the parties must have a mortgage and must default on the mortgage. Second the lender is not able to sell the property to cover the outstanding mortgage. Third the lender must believe that the boundary line agreement devalued the property and is the reason that the outstanding mortgage can not be covered. Fourth the lender must feel the cost to take this to court is worth the risk, to recoup the perceived loss of value due to the boundary line agreement.
Then the lender or other party will need to carry on to the appellate court for us to read about it.
> >
> > Bingo! That is true IF there is a conveyance. However, if the requirements of a boundary LOCATION doctrine have been met there IS NO CONVEYANCE. Therefore the title has not been affected, therefore the mortgage holder plays no role and is not affected by the establishment of the boundary on the ground, other than all future owners are bound by the boundary established on the ground with notice.
>
> Except that overlooks two points. The first is that agreements as to boundaries are in effect contracts that would not be enforceable against the holder of a superior lien after a foreclosure, right?
No. False. Any and all subsequent owners are bound by the agreement as long as they have notice.
> The second is that many verbal agreements as to boundaries may be seen as detrimental by that lienholder. This would be particularly true where there are winners and losers and the foreclosed property is the one that lost frontage or area.
Again, False. There are no "winners" and "losers", no one gained or lost property, the boundary never moved, there was no conveyance. The uncertain boundary was merely made certain and located and marked upon the ground.
I have posted many court cases that very plainly state these principles, yet you have not provided one authoritative source for your opinions. Why is that? It is because they are fiction.
