> 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.
Absolutely right on the money, Dan. I would add, fifth, the lender isn't about to attempt to "undo" an agreement that has settled the location of a boundary with the neighbor when the only result is the resurrection of a problem which now must be again resolved. What's the point?
If the property has been somehow devalued by the agreement, then the lender's recourse for recovery is found in the borrower's contract (the trust deed). In most cases, however, there is more likelihood that the agreement has increased the property value as it has settled the uncertainty of the boundary and resolved any potential dispute. That's a potential savings to the lender of 10's of thousands of dollars in avoided litigation.
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.
The lender's "future possessory interest" is protected by the "loss in value" clause of the trust deed. If the owner/occupant enters into an agreement which devalues the property, the lender can "apply the sum secured by the Security Instrument, whether or not then due, with the excess, if any, paid to the Borrower." The trust deed doesn't forbid the agreement, it simply compensates for any potential loss incurred by the lender.
JBS
> 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.
Yes, I know that is the fiction, but when two parcels that supposedly had equal areas are left with one significantly larger and the other significantly smaller by comparable amounts, it's fair to say that one lost and the other gained. That's what any person of normal sensibilities would certainly think.
The same applies to frontages. This doesn't seem that esoteric a point.
> Yes, I know that is the fiction, but when two parcels that supposedly had equal areas are left with one significantly larger and the other significantly smaller by comparable amounts, it's fair to say that one lost and the other gained. That's what any person of normal sensibilities would certainly think.
>
A boundary line agreement freely negotiated between two adjoining landowners will not result in any "significant" changes in the placement of the line, the frontages or the areas. If they were "significant," then the owners at the time of the agreement would have raised a concern. We have no authority to judge what they should have considered "significant."
It's not "fiction" to consider that the line, which was uncertain, is in any other position than it was originally intended now that it is made certain. It's also "reality" that no two survey monuments are placed precisely in accordance with the record. It's more of a "fiction" to believe that a tier of ten 100'x200' lots are precisely 100'x200' and contain precisely 20000 square feet each. If we go by the original monuments placed by the original surveyor, how many of those lots are less than the required frontage and area? None. That's why the law goes by the INTENT of the owner to create ten lots which conform to the frontage and area requirements. If it wasn't that way, at least half of all minimally conforming lots would be found in non-conformance. A "great public calamity" would ensue.
JBS
> 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?
On a more practical level, if A has to sue to establish that the boundary actually now is in some position that A and B agreed upon over backyard beers and not in the location described in the Deed of Trust that B executed before the supposed agreement, what is the likelihood after B is divested of ownership in foreclosure that B will say anything other than "no, we never had an agreement" if the net result of a diminution of value of the property will be some lender going after him with a deficiency judgment in hand?
> The lender's "future possessory interest" is protected by the "loss in value" clause of the trust deed. If the owner/occupant enters into an agreement which devalues the property, the lender can "apply the sum secured by the Security Instrument, whether or not then due, with the excess, if any, paid to the Borrower."
That would give the borrower in default an excellent reason to absolutely deny that there was ever any agreement as to the location of the boundary.
Brian, Kent knows and understands the law. He just doesn't agree with the law. Just my view from about a decade of experience.
> A boundary line agreement freely negotiated between two adjoining landowners will not result in any "significant" changes in the placement of the line, the frontages or the areas. If they were "significant," then the owners at the time of the agreement would have raised a concern. We have no authority to judge what they should have considered "significant."
Of course that isn't true. All one needs to do is to compare the original location of the boundary that was objectively certain at the time that the adjoining owners decided not to hire a surveyor to show it to them to wherever it is later claimed to be. The difference between the agreed line and the original line will invariably be significant, particularly on residential parcels with improvements and setback requirements.
[sarcasm]Yeah, but we need more open space.[/sarcasm]
Yes, and the "loss in value" clause is not there for the purpose of allowing people to devalue their property in secrecy. I'm not sure it would apply at all, but I'm not an expert in that area.
The point is, why the push for secret agreements? When two parties are in dispute over a boundary the surveyor is supposed to duck into a phone booth, fly out and save the day, and then retreat to anonymity? I mean, there are simple above board steps that can be taken to solve the thing, keeping everyone with interest in the loop.
I'm just not getting the arguments for land boundary anarchy, rescued by supersurveyor man.
Sarcasm surfacing, better take a break:)
I appreciate Mr. Karoly’s thought provoking research. I apologize in advance for the hit and run post-my current schedule does not allow time to actively post on this forum.
The posts here are informative and some are disturbing. Land title is evidence of ownership, not necessarily conclusive of ownership (think in terms of an overlap). Conveyance documents, deeds, fall under contract law in the states with which I am familiar. Adding to contracts without all of the parties having a vested interest (possession or non-possession) signature would appear problematic on the face.
I have a couple of considerations, why would a surveyor prepare “agreements” which are outside of the original-as opposed to amending the original contract via deed reformation? It appears as though some contributors are bent on threading the legal needle, incurring unneeded liability and questionable services, rather than utilizing the legal framework already in place i.e. deed reformation and modified deeds of trust to remedy the situation.
I say “questionable services” because a fence can be constructed without a surveyor; typically a string line and a sturdy back are the only requisites. Rather than try to rectify and make coincident a title boundary with fence, why not offer the license (rather than an agreement) stating the fence is not recognized as the title boundary, rather is a fence of convenience for the purposes of security and privacy (or whatever else). No survey/surveyor required. If properly filed, a license shows up in title and is renewable or revocable and doesn’t jack up title or title interest holders.
Conversely, a boundary line agreement has a place-when there is uncertainty, not inconvenience. If the title lines are ascertainable and are in disagreement with the ownership lines, why not modify their contracts (deeds) by deed reformation (and modified deeds of trust, if applicable) so that title and ownership are forever coincident without introducing the agreement? Anyone here stop to question why these processes exist? Legal theories are fine, it is the duty of a surveyor to understand them, but it not the surveyor’s duty to apply them indiscriminately without the benefit of due process. We have the ability and legal authority to remedy most land title problems with the cooperation of the parties, but we are not trained advocates and/or trained to protect the rights of our client or their neighbors.
For those requesting legal references:
“There had been only a mistaken acquiescence in what was believed to be the true boundary. In such situation, …such acquiesce by [plaintiffs] is a wrong boundary is considered in both law and equity as a mistake and either party is free to claim the true line.” (Pra v. Bradshaw (1953) 121 Cal.App.2d 267, 269; see also Kirkegaard v. McLain (1962) 199 Cal.App.2d. 484, 491). [Where… coterminous proprietors are in possession of land under a mutual mistake as to the division line, such possession has no effect upon their legal rights, nor is it adverse or conclusive against the assertion of any right based upon the true title”]. I believe this states an owner could assert a claim to the title lines, undoing an agreement, especially without proper representation of the individual's rights.
Summary:
Read the legal reference section again. This explains the need for uncertainty in the location, not uncertain to the owners, not inconvenience. Consider using the proper tools for the job i.e. licenses, deed reformation, modified deeds of trust and in those very rare instances, a boundary line agreement. It is important to get all interest holders to the table and modify the contracts, especially in a title theory state.
Thanks again to Mr. Karoly’s research and contribution.
DWoolley
> I'm just not getting the arguments for land boundary anarchy, rescued by supersurveyor man.
I think if the Utah surveyors were to post more examples of the screwed up messes that surround them, wanting to have a spray can of Magic Boundary Fixative might make sense there.
> Rather than try to rectify and make coincident a title boundary with fence, why not offer the license (rather than an agreement) stating the fence is not recognized as the title boundary, rather is a fence of convenience for the purposes of security and privacy (or whatever else).
That's certainly what I recommend to landowners. It's worth noting, though, that such a license would likewise be nullified by a foreclosure on the property subject to it.
> > The lender's "future possessory interest" is protected by the "loss in value" clause of the trust deed. If the owner/occupant enters into an agreement which devalues the property, the lender can "apply the sum secured by the Security Instrument, whether or not then due, with the excess, if any, paid to the Borrower."
>
> That would give the borrower in default an excellent reason to absolutely deny that there was ever any agreement as to the location of the boundary.
If the lender claimed the agreement was invalid because they didn't participate, then they would be admitting that the agreement could not have impacted the value of the property and there would be no loss of value. A slippery slope.
Declaring the agreement void would also serve only to open the old wound, fostering litigation which is contrary to the lender's desire.
JBS
> The point is, why the push for secret agreements? When two parties are in dispute over a boundary the surveyor is supposed to duck into a phone booth, fly out and save the day, and then retreat to anonymity? I mean, there are simple above board steps that can be taken to solve the thing, keeping everyone with interest in the loop.
>
I don't believe that anyone is promoting "secret agreements," or that surveyors should "retreat to anonymity." The "above-board steps" that should be recommended by any surveyor confronted with the conflicting evidence should be to encourage resolution of the conflict. That means to document the solution in writing and to get it in the record BEFORE we finish the survey.
If we have no intention of assisting in the resolution, we should at least STOP THE SURVEY and defer the issue to someone who isn't afraid to DEAL WITH IT. We have long been instructed on what to do and how to do it, yet we've come to deny the very reason why we are surveyors. We determine boundaries and we document evidence so those boundaries can be retraced. Boundary agreements are but one form of documentation at the surveyor's disposal. Surveyors must understand them in order to properly use them. If they choose not to, then they need to direct their client to someone who will.
"Article 15th. It will be the duty of the surveyor before commencing any survey to see that adjoining proprietors are notified in order to promote the general harmony of the neighborhood.
Article 16th. Where a difficulty arises concerning the right of location of a particular place, it will be the duty of the surveyor to use all reasonable means in his power to induce the parties to settle their differences in an amicable manner.
… but, if the dispute is about a particular line and an amicable adjustment cannot take place, it will be the duty of the surveyor to desist from any attempt to survey until the dispute is settled. Any surveyor who shall continue the process of the (above) and, survey and return lands in dispute without notifying the commissioner and run disputed lines without the agreement of the parties interested, shall lay himself liable to the heaviest responsibility."
Regulations by which Surveys will be Governed in the Location of Vacant Lands (1827)
JBS
"Surveyors must understand them in order to properly use them"
That I can agree with.
> I have a couple of considerations, why would a surveyor prepare “agreements” which are outside of the original-as opposed to amending the original contract via deed reformation? It appears as though some contributors are bent on threading the legal needle, incurring unneeded liability and questionable services, rather than utilizing the legal framework already in place i.e. deed reformation and modified deeds of trust to remedy the situation.
>
There are numerous remedies available under the law, each designed with the reparation of a specific type of problem in mind. Boundary agreements should be used to repair uncertainty or a dispute over a boundary. When there is no uncertainty or dispute, a boundary agreement is improper.
Likewise, there are specific requirements for reformation of a deed as well. In fact, the reformation doctrine is even more restrictive in its application than agreements. The reformation is only allowed when there is mutual recognition of an error in the written instrument. The parties may, by mutual consent, reform the language only to conform the language to their original agreement. The parties to the reformation must be the original parties or persons in close proximity to the original transaction.
Modification of the title record will result in fixing title problems. If it's a title problem then, by all means, employ solutions designed for the purpose of resolving the title problem. Just as employing a boundary agreement will not resolve a title issue, employing an action quieting title to your legal description won't resolve a boundary location issue.
> Rather than try to rectify and make coincident a title boundary with fence, why not offer the license (rather than an agreement) stating the fence is not recognized as the title boundary, rather is a fence of convenience for the purposes of security and privacy (or whatever else). No survey/surveyor required. If properly filed, a license shows up in title and is renewable or revocable and doesn’t jack up title or title interest holders.
>
Licenses are certainly another way of temporarily resolving an issue and should be encouraged under the proper circumstances. A survey may or may not be required to prepare the license. I'm just wrapping up a 3-year dispute over a license executed in 1954 for joint use of a driveway which expired upon the first sale of either property. Four owners down the line, after 3 years of litigation, successfully mediated a permanent easement for the joint use. Licenses have their place if a temporary solution is sought.
> Conversely, a boundary line agreement has a place-when there is uncertainty, not inconvenience. If the title lines are ascertainable and are in disagreement with the ownership lines, why not modify their contracts (deeds) by deed reformation (and modified deeds of trust, if applicable) so that title and ownership are forever coincident without introducing the agreement? Anyone here stop to question why these processes exist? Legal theories are fine, it is the duty of a surveyor to understand them, but it not the surveyor’s duty to apply them indiscriminately without the benefit of due process. We have the ability and legal authority to remedy most land title problems with the cooperation of the parties, but we are not trained advocates and/or trained to protect the rights of our client or their neighbors.
>
I whole-heartedly agree. We must understand the various remedies available so we can provide information to our clients such that they can enter an informed decision to resolve the matter at hand. Surveyors are not and cannot act as advocates nor should they give advice to the parties. The surveyor certainly has been given the knowledge, skills, experience and expertise to assist the owners in the resolution process.
JBS
"Regulations by which Surveys will be Governed in the Location of Vacant Lands (1827)"
Texas GLO?
> If the lender claimed the agreement was invalid because they didn't participate, then they would be admitting that the agreement could not have impacted the value of the property and there would be no loss of value. A slippery slope.
>
> Declaring the agreement void would also serve only to open the old wound, fostering litigation which is contrary to the lender's desire.
Not really, the "wound" was self-inflicted and foolish. Since the holder of the superior lien foreclosed on the property, the supposed agreement vaporized. So what's left is presumably a fence that isn't built on the property line as described in the adjoining landowners's deeds and an adjoining landowner who now will be able to see where the boundary really was that he didn't want to pay a surveyor to locate. If the fence is onto his tract too much, it's a safe bet he'll be out next weekend moving it.
>...see also Kirkegaard v. McLain (1962) 199 Cal.App.2d. 484, 491). [Where… coterminous proprietors are in possession of land under a mutual mistake as to the division line, such possession has no effect upon their legal rights, nor is it adverse or conclusive against the assertion of any right based upon the true title”]....
Kirkegaard v. McLain is the Fresno County case I mentioned earlier where they found the wrong iron stake and built their fence. McLain had strung the stringline and they built the fence. Later it was found that the original lot line was on Kirkegaard's side of the fence. Kirkegaard sued McLain and won. McLain appealed and the Appellate Court affirmed the judgment ruling the Agreed Boundary Doctrine applies.
They discuss the Doctrines for quite a while then finish with this:
"We are bound by the time-honored rule as to weight of evidence ( Tolliver v. Lundquist, 183 Cal.App.2d 816 [7 Cal.Rptr. 192]) and conclude that there is sufficient evidence to support the finding. ( Roberts v. Brae, 5 Cal.2d 356 [54 P.2d 698].)"
Maybe they didn't like it but were required to affirm the judgment.
