Landowner Finds Wrong Corner

Estoppel

I have a different take. The surveyor located the established line. As JB has stated there is not any change in title, no unwritten transfer of title, no title has passed. The surveyor didn't give any legal advice he just did what he is supposed to do and located the established boundary (a retracement). The surveyor searched out and found the evidence necessary to determine the facts and then applied the law to come up with the location of the boundary.

Yeah and where it goes south is there are so many who won't accept the law, that the boundary is established and that there must have been a transfer of title because the plat line and the established line are not in the same location. It took me years and a lot of reading and for me actually talking to JB to get my head around all this. Most folks are so set into their thinking that they can't even read the case law and understand what is being said.

In the survey narrative the surveyor would put it all down how the boundary location was determined. I wouldn't show two boundary lines for one boundary. I would show the boundary marker that was missed and its location. You would explain it in the narrative. Then those that follow wouldn't (hopefully) try to move the established line (good luck with that).

Estoppel

At what point was Mr. North prohibited from correcting his mistake? When he built the fence or when Mr. South possessed his land by improving it? Why didn't Mr. South gain title by adverse possession? When can a boundary be established by mistake?

Estoppel

Be careful, Slander of Title can be expensive.

Estoppel

All good questions linebender. I am going to do some research and track down some case law, It might take me awhile, but I need to refer to some outside material to see exactly what has happened in similar cases. My opinion might change. I am not always right, and I freely admit it. Either way this is getting good.

Estoppel

The key concept is there is no transfer of title to a little strip of land.

This seems weird but that is how the law deals with it.

Each owner has a Deed; they each have clear title to their Lot as described by their Deed. The question of fact is, where is the boundary between the two Deeds located?

Once the boundary is determined to be the fenceline alignment then that is the boundary; no strip of land transferred. This is the way the law looks at it but unfortunately some of the Texts are misleading in that they imply there is a little strip of land which was transferred by unwritten means which is impossible outside of Adverse Possession.

Estoppel

I would not think so. There would be unwritten title interest, but in most states interest in title can on be written title. Title is certainly clouded and only a court can (outside of an agreement conveying title) un-cloud (clear) it. What about the mortgage company? Their interest is in what was deeded, regardless of the posessory fence and improvements. I would agree with what was said earlier, that the fence is a boundary by not a title line until adjudicated as so. Some form of written conveyance needs to be used to fix this.

Bottom line, I'd show the plat/title line and the fence and note that it indicated that their may be questions/issues as to ownership that need to be addressed.

I just don't much care for this fence is the title line stuff. The last time I attempted to accept an existing fence and markers as the line, even though it differed by a only a foot or so at one end (at the waterfront bulkhead, of course) from where the deeded line should have been, my client had a fit (he was losing the foot in his opinion) and had the credit card company take back the money he had paid. I eventually had to go pull my markers and eat the cost. It is still in court and in dispute.

Nice!

We and a lot of surveyors around here use rebar for control. Most all of us have special caps stamped "CONTROL" and are red vice the standard yellow. There are some surveyors that like to use red caps for markers, so it could be confusing. But, we also make a point to put our control markers down a ways with no flagging so it would be unlikely that they would be stumbled upon. Besides, it's not just rebar, I've seen plenty of instances when people have taken hub/tack traverse points a property markers. Unless someone has had a survey before, they really can;t be expected to know. Again it's one of the reasons we don't mark up our control points. It makes it harder to find them again at times, but good field notes go a long ways in that regard.

Estoppel

There is no unwritten title interest. There is no Title problem. This is a boundary problem which needs a determination. Only Land Surveyors are licensed and qualified to Survey boundaries.

Each owner (for the sake of argument) has clear title to their property as conveyed in a Deed. The question of fact is: where is the common boundary between the Deeds?

If Estoppel applies then the answer is the Estoppel line. The law views that as the boundary per the two Deeds; it is a legal fiction. The other boundary does not exist in the eyes of the law.

No title transfer has taken place.

Estoppel

My reply was more general and the point was that there was no transfer of title via estopple.

As far as correcting a mistake at some point others have relied upon the mistake and spent enough time and money that the courts won't reverse the mistake. If the damages are small and no harm would be done correcting the mistake would be OK. However if correcting the mistake required removal of improvements then most likely the mistake would stand. If you are dealing with government land all bets are off.

Leaving the current problem aside which we don't have all the details or evidence to sort out the facts, I was addressing the problem assumming estopple had occurred. If the facts established the boundary line then there was no transfer of title.

Estoppel

:good:

Estoppel

Not estoppel, but a similar case.

Thurkill v Wood

This was decided as an acquiescence case, but the circumstances were similar.

Estoppel

We have several boundary location doctrines that don't change title. These seem to have a common thread of uncertainty that has been settled by actions of owners. We are also told adverse possession is a title problem, not a location problem. Why has the location of the original undisturbed marked boundary become such an uncertainty? What made it uncertain? A mistake? Why would the issue not be that Mr. South is adversely in possession of a part of Mr. North's lot making it a title problem? At what point are the owners not obligated to acquiesce in location of the original marked boundary? Does an inch of dirt over the mark nullify the obligation?

Estoppel

I don't know what state you are in, there could be differences.

From a recent Utah case:

In Utah, a person without legal title is deemed "to have been under and in subordination to" the owner with legal title unless that person has adversely possessed the property. Utah Code Ann. § 78-12-7 (2000). When an occupant has entered into possession of property under a claim of title, the occupant may establish adverse possession by demonstrating that (1) the property was "occupied and claimed for the period of seven years continuously," id. § 78-12-12; (2) "the party, his predecessors and grantors have paid all taxes which have been levied and assessed [on the property]," id.; and (3) the property was, in pertinent part, "usually cultivated or improved," "protected by a substantial inclosure[,]" or "used ... for the ordinary use of the occupant," id. § 78-12-9.

So Mr. South would need to enter the property under a claim of title for 7 years, paid the taxes and used the property. Usually the taxes puts adverse possession away in Utah. Mr. South hasn't paid the taxes on the area unless he has legal title. He doesn't have title unless the boundary has been established by estopple in which case he is not claiming title adversely, it would be his land by his title.

Utah for the most part doesn't have boundary by agreement and adverse possession intertwined and mixed together. The courts have done a good job separating the two. It may be different in other state and I believe some states got it all mix up

Estoppel

Estoppel cannot be used to transfer title. There is case law to support this. In Arizona look at Desruisseau v. Isley.

This theory simply estoppes someone from harming another by claiming a contradiction in evidence. In this case the fence and improvements accepted by the northern owner is the evidence. He is then estopped from claiming interest in the land south of it and thereby causing the southern owner monetary harm. It could certainly stop the northern owner from transferring any title which includes the area in question.

The party benefiting from the estoppel, on being informed of the oustanding legal title may, under his states statutes, bring a quiet title suit, in which case the court will examine the true rights and THEN give effect to the estoppel by compelling a conveyance in title.

With certain exceptions, title to real property can only be transferred by an instrument in writing. Otherwise, if estoppel could be used, why would we have Adverse possession and boundary by acquiescence? For title to transfer the elements of these doctrines must be met. I don't know if it was said here that they met this particular states time frame or not. Even still, though title may transfer, it would not be clear title.

Estoppel

In Washington state, taxes have absolutely nothing to do with it. There is no way that the tax-man could know that Mr South was occupying 9 or 10 feet or a pie of Mr Norths tax parcel, so of course no taxes would have been paid.

The latest change to the state Adverse Possession (AP) law does allow for the loser in an AP case to be reimbursed by the winner for taxes that were paid on the claimed land.

Courts here have held that acquiescence cases must meet the statutory time requirements for them to be valid.

Estoppel

Sorry Dave for seeming to disagree with you below as I completely agree with you here. I probably just was not very clear. I think a lot of us use the term Boundary as synonymous with the title line. Maybe it would be better to refer to it as a possessory or possession line. Otherwise the term Boundary Line Adjustment (BLA), which is defined and used in all manner of statutes, seems to become obscured. That is, if the purpose of the BLA is to adjust the line from it's title/deed position to the existing and excepted fence line, but we say the fence is the boundary, then we are not really adjusting the boundary, just the deed line. But then again, maybe it is all really bass-ackwards to begin with!;-)

Estoppel

I don't think that uncertainty is required or that a mistake was made affect estopple in Utah.

From a very recent case:

To summarize, to successfully invoke the doctrine of boundary by estoppel, a party must demonstrate: (1) that the record title owner or her predecessor in interest made an affirmative misstatement that a given line was the true boundary between the neighbors' properties, (2) that the innocent party took affirmative action in reasonable reliance on this misstatement, and (3) because of this affirmative action the innocent party would suffer sufficiently substantial injury that it would now be unfair or unreasonable to enforce the record title boundary.

Estoppel

Well the California Courts have totally muddied the waters on the common law doctrines. The Attorneys and Judges seem to often use every means possible to avoid using common sense.

This is an interesting article:
http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i4/san405.pdf

The author mostly blames the problem on payment of taxes although the common law doctrines are distinguishable from adverse possession. He seems to think the purpose of the common law doctrines is to find a way around adverse possession but I think their original purpose was to allow for a way to use long established, existing boundaries while at the same time trying to not have complete anarchy or absurd results far out of compliance with the Deed descriptions.

I didn't necessarily read it all thoroughly there.

There are some Estoppel cases in there.

Estoppel

Here is some more Utah law with regards to whether there is a transfer of title:

Utah Courts 2009

A review of the Utah cases involving boundary disputes reveals that it has long been recognized in this state that when the location of the true boundary between two adjoining tracts of land is unknown, uncertain or in dispute, the owners thereof may, by parol agreement, establish the boundary line and thereby irrevocably bind themselves and their grantees.Rydalch v. Anderson, 37 Utah 99, 107 P. 25; Tripp v. Bagley, 74 Utah 57, 267 P. 912, 69 A.L.R. 1417. In the latter case this court pointed out that when the location of the true boundary is known to the adjoining owners any parol agreement between them establishing the boundary elsewhere would be an attempt to transfer an interest in realty without complying with the statute of frauds. But, we stated, if the location of the true boundary is not known to the adjoining owners, a parol agreement between them fixing its location is not regarded as transferring an interest in land but merely determining the location of existing estates.

If you really want to know current Utah law on estopple, acquiescence, and boundary by agreement:

Bahr v. Imus, 250 P. 3d 56 - Utah: Supreme Court 2011

Estoppel

Interesting. The Statute here in Washington for what I refer to as Boundary Line Revisions is pretty much a duplicate of that. My only question is what is meant by the term "Unknown"?

At it's most basic, two owners call me and tell me, "Hey, we have no idea where our common line is but we would like it to be here at this hedgerow." Does that mean that that can then become the legal boundary even though it is completely at odds with both clear deeded title? It would not seem so as that seems to get back to what the court called illegal transfers...