The description contained in the deed is just "South 150 feet" but is several feet/degrees off the fence. Do I have them sign a notarized affidavit on the face of my ROS so I can use that information to place the boundary where intended??ÿ
No simple answer to that question.?ÿ Start digging through the chain of title.?ÿ The answer may be contained in the very first appearance of that 150 foot call.
Put the line where the historical documentation tells you it should be.?ÿ Don't put it on the fence unless the chain of title tells you that the line should be the fence.
South 150' usually doesn't mean S00d00'00"E, 150.00', it normally will be found in the field to mean something between S03dW or S03dE, 145-155', somewhere in there and you're golden.
Adjoiner's deeds, occupation, chain of title, all those come into play, first thing is to lay out the history and geometry and figure it out. I wouldn't discount the landowner's statement, but I can't see an affidavit with this one. It's very typical.?ÿ
Have a new client because the Register of Deeds refused to record a deed with calls such as: northwesterly 112 yards; northeasterly, 304 yards; southeasterly, 654 yards to the east section line.
They had picked where the new corner posts were going to be set around a tract in two sections containing more than 200 acres using a rangefinder commonly used for spotting deer.?ÿ They couldn't understand why that could not be plotted by anyone in the GIS department.
First, have you polled the adjoining landowner for their opinion??ÿ
Oregon has a "parol evidence rule" which says that if the deed description is unambiguous it can't be altered by parol evidence. Which is what the landowner saying what his intention was would be.?ÿ I suspect that most states have a similar statute. Even if not it is a basic principle of common law.
So we move on to potential unwritten boundary agreements in their various forms - practical location, recognition & acquescence, etc.?ÿ Must be proven, not assumed.?ÿ
Then there is AP. Good luck with that.
Simpliest, cheapest thing for all is to move the fence. Next best is a (documented) boundary line adjustment.
I agree, but wonder the outcome if it ever went to court
The outcome is that a couple of attorneys get to bill about $40k each.
the fence was always intended to be the boundary
Great! Please show me the document that says that, and I will be happy to use it as the basis of my survey.
If they can't produce the document (which is usually the case) then the next question is: "Who" intended it to be the boundary? A fence has 2 sides to it; if the neighbor has no recollection of that being the intention, then it's a one sided fence...
if the neighbor has no recollection of that being the intention, then it's a one sided fence...
And if he does recall it a documented BLA is a routine matter.?ÿ
How did you determine where the documented location is??ÿ How far back does the original deed to the property go??ÿ Were the current owner and the adjoiner involved in the creation of the original transfer?
The description contained in the deed is just "South 150 feet" but is several feet/degrees off the fence. Do I have them sign a notarized affidavit on the face of my ROS so I can use that information to place the boundary where intended??ÿ
Had a similar situation. Owner kept telling me the fence was the boundary, but I was 15' short. He told me the fence (big RR ties set in the ground) had been there since before I was born. When I found the rebar with caps that matched the short plat, I was pretty happy.
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But, it depends on your state. In some states, if both neighbors agree, then it is simple boundary line agreement signed by the parties.?ÿ I would not think that the statement by one of the parties would be enough to "move" the line.
I've always been of the understanding that a Boundary Line Agreement was only valid if the actual line was not able to be determined and placed on the ground. If the line is recoverable, then a quit claim deed would be required to convey all interests, if any, to the piece of property between the boundary line and to the fence. I've heard this from my mentors on my way to licensure and from Don Wilson in his seminars. I would think this would be a universal throughout the US, but that is just my guess that isn't supported by fact. If my memory serves me correctly, it has to do with the Statute of Frauds. I'll have to look it up now....
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No.
I've always been of the understanding that a Boundary Line Agreement was only valid if the actual line was not able to be determined and placed on the ground. If the line is recoverable, then a quit claim deed would be required to convey all interests, if any, to the piece of property between the boundary line and to the fence. I've heard this from my mentors on my way to licensure and from Don Wilson in his seminars. I would think this would be a universal throughout the US, but that is just my guess that isn't supported by fact. If my memory serves me correctly, it has to do with the Statute of Frauds. I'll have to look it up now....
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Surveying scholar @dave-karoly gives these definitions (from this old thread https://surveyorconnect.com/community/surveying-geomatics/subjective-uncertainty-v-objective-uncertainty/?ÿ ):
"Subjective Uncertainty?ÿis in the mind of the property owners, e.g. they don't know where the boundary line is located. If it can be surveyed or the deeds are unambiguous is irrelevant.
Objective Uncertainty?ÿis a stricter standard. If the property can be surveyed or the deeds are unambiguous then the boundary line is not objectively uncertain is my understanding of it."
This is an important component of what Jeff Lucas often teaches regarding boundary law..
a Boundary Line Agreement was only valid if the actual line was not able to be determined and placed on the ground.?ÿ
RCW?ÿ58.04.007
Affected landowners may resolve dispute over location of a point or line??Procedures.
RCW58.04.020
Suit to establish lost or uncertain boundaries??Mediation may be required.
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Another vote for a Boundary Line Agreement or Adjustment here, if either one is an option in your state.
The description contained in the deed is just "South 150 feet" but is several feet/degrees off the fence. Do I have them sign a notarized affidavit on the face of my ROS so I can use that information to place the boundary where intended??ÿ
But, it depends on your state. In some states, if both neighbors agree, then it is simple boundary line agreement signed by the parties.?ÿ I would not think that the statement by one of the parties would be enough to "move" the line.
I don't think this is quite right.?ÿ My understanding is that they can only agree if the boundary cannot be determined by a careful review of the evidence.
Do I have them sign a notarized affidavit on the face of my ROS so I can use that information to place the boundary where intended??ÿ
When the word so is used in the question it seems like the meaning is that as a result of the affidavit being a part of the ROS that a boundary can be placed where intended. Where is one to start with this contention? ?ÿ
Let??s start with when a boundary by acquiescence ripens in Utah. If it is true the intent was always that the boundary is where the fence is, when the surveyor arrives,?ÿtitle has ripened if the requirements have been met. ?ÿ
it is unmistakable: title is obtained by operation of law at the time the elements of boundary by acquiescence are satisfied. Q2 LLC vs, Hughes. Utah Supreme Court 2016?ÿ
Surveys are requested to mark the boundary, not some other line. A surveyor in Utah HAS to mark the boundary if he is to complete the survey. The only question to answer is where is the legal boundary. The surveyor must gather the same information and cover the same ground a court would in order to complete the survey. The surveyor cannot quiet title however that does not excuse them from surveying the lawful boundary. ?ÿ
Here are the requirements?ÿ
Establishment of boundary by acquiescence requires (i)occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary, (iii) for a period of at least 20 years, (iv) by adjoining landowners.?? Jacobs v. Hafen, 917 P.2d 1078, 1081 (Utah 1996).?ÿ
I found a few other cases in Utah where when the ??true? line was discovered it was too late because the operation of law in establishing the legal boundary had already ripened.
In summary, an affidavit wouldn't hurt but its not what should be the driving force behind marking the legal boundary.?ÿ
I'm sure Professor Stahl would be a valuable resource in Utah.?ÿ?ÿ