Duane
I find your comments very helpful.
Revising the Agreed Boundary Doctrines by Statute could be done but great care is required. Our Supreme Court, following previous Court of Appeals Decisions, obviously expressed discomfort with the Doctrine in the 1994 Bryant decision. They left the Doctrine mostly intact but required evidence of the Agreement in certain circumstances, primarily when the only evidence is a fence. Prior to that the agreement could be inferred from long acquiescence in the fence or other physical boundary.
I think maybe a better approach would be to require objective uncertainty and restore the ability to infer the agreement. The reason for this is in many rural areas the fences have been the boundaries for decades (but not always) especially in the case of sectional breakdowns which may never have been run by a surveyor. Modern urban subdivisions should require objective uncertainty otherwise the agreement would'nt be enforced except as to the original parties to it. The goal would be to reduce some of the anarchy in urban boundaries but let alone established boundaries which have persisted in rural areas for decades.
California's first acquiescence case did not require an agreement and cited authorities from other States: Sneed v. Osborn, 25 Cal. 619 (1864). The doctrine seems to have evolved throughout the 19th century to the point where an agreement was assumed to exist but it was a legal fiction.
Young v. Blakeman, 153 Cal. 477 (1908) is a case issued by the entire Supreme Court which laid down the current version of the Agreed Boundary Doctrine in California. I can't say it's the first; I think it solidified the current doctrine from earlier decisions and is cited by numerous later Agreed Boundary cases.
Clapp v. Churchill, 164 Cal. 741 (1913) was the first case to view the agreement in contract and in order for such a contract to be valid uncertainty must be present. The Supreme Court before we had an Appellate level would issue decisions by Divisions or in Bank. Clapp was issued by Department Two. Another case which doesn't hold to the contract view is Schwab v. Donovan, 165 Cal. 360 (1913) which was issued by another Department. These are available for free at: http://www.lexisnexis.com/clients/CACourts/
:good: :good: :good:
There is no one blinder than those that refuse to see.
Please note that the rule saya "prima facia evidence". That is not the same as conclusive evidence. There is a difference.
One thing I forgot to mention in this whole discussion:
There is no requirement that landowners get any survey done to do a boundary line agreement or the new parcel boundary adjustment, which have both now been removed from any review of the land use authority (P&Z). They have to have a description and present a recordable form of a quitclaim deed. As far as I can tell they can write the description themselves or have anyone else write one for them.
And if you want to get yourself kicked out of the state house be so dumb as to ask for legislation to require surveys by surveyors for this. Most intelligent land owners will get a survey but most probably won't. So the more things change the more they stay the same. Most P&Z's required a survey but I can't see that the state law does. So at least for now it's a free for all for quitclaim deeds.
Actually I can probably turn this into an opportunity. With P&Z kicked to the curb I'll probably get a lot of work that was just to problematic for landowners before (not going to endure that hassle). I don't need a pad of quitclaim deed forms because I can print them all I want. I'm sort of like the Federal Reserve Bank in that regards.
This probably ain't gonna last to long because I foresee a whole other train coming down the track as folks start fixing their boundaries with boundary line agreements in subdivisions which heretofore P&Z considered subdivision plat amendments. Some of them are going to be DIY'ers also. This is really going to clean up the record title math, hell it might get worse.
So if you can't beat em join em, eh?
Yes, exactly my point as well.
Of course, but do you know what the difference means for surveyors?
I believe the legislative history in NY shows the law on this point was first passed in the laws of 1923. It required 20 years and called it "presumptive evidence".
The change to 10 years and "prima facie evidence" is a strengthening of the regard for previous surveys.
The likelyhood of proving one of these surveys incorrect on any evidentiary grounds is about nil, as it should be in my view.
This law does not negate the possibility of agreed boundaries after the survey. However, it does or should help relieve the problems you seem to have out west (according to this thread) with surveyors not being able to agree on any retracements.
You might argue that any actions affecting a land boundary involving two differing members of the public falls under the current definition of surveying and must be performed by a surveyor for protection of the public. But it sounds like the bigger problem is convincing people that surveyors are helpful in this process and not the ones creating the problem. Unfortunately, people do want to shoot the messenger rather than address the problem in most cases.
Duane
Yeah, we strayed from your point a bit. I think you're right that objective uncertainty would help in certain situations. First cases in NY were regarding stone walls (also referred to as fences in the decisions) in the early 1800's and referenced English court decisions. They were based on Estoppel, and it was only later that this was explained as implied agreement. The agreement theory introduced new barriers to a line other than the surveyed one and I think that trend will continue as surveys have become more reliable due to the slowing of development, and with new technology and more permanent markers.
> You might argue that any actions affecting a land boundary involving two differing members of the public falls under the current definition of surveying and must be performed by a surveyor for protection of the public.
This is an area of serious misconception. The actions of two landowners generally do not fall under the definition of surveying (at least in the statutes I have read). That is exactly the purpose of the boundary location doctrines. To lawfully allow the landowners the authority and the lawful means to settle uncertain or doubtful boundary locations. The power and control over the boundary lines is SOLELY under the control of the landowners, a surveyor has absolutely NO authority in determining the location of a boundary line. A surveyor can ONLY issue an opinion, hopefully that opinion is formed based on all the relevant evidence and in accordance with the laws, including the boundary location doctrines.
>But it sounds like the bigger problem is convincing people that surveyors are helpful in this process and not the ones creating the problem.
I wholeheartedly agree. Unfortunately, in many areaas, problems are more than likely to be caused by a surveyor than anyone else, especially when the surveyor doesn't have all the relevant evidence and does not know how to apply the law, especially the boundary location doctrines.
>Unfortunately, people do want to shoot the messenger rather than address the problem in most cases.
Shouldn't the messenger be "shot" if he delivers the wrong message because he doesn't understand what his professional responsibilities are, and in many cases has actually caused problems where none existed before his arrival?
Actually the troublemaker may provide a valuable service in Utah for Boundary Line Agreements.
The new law removes P&Z review from parcel boundary adjustments and boundary line agreements. A parcel boundary adjustment is defined:
(34) "Parcel boundary adjustment" means a recorded agreement between owners of adjoining properties adjusting their mutual boundary if: (a) no additional parcel is created; and (b) each property identified in the agreement is unsubdivided land, including a remainder of subdivided land.
So they are still keeping P&Z review for subdivisions.
However they also removed P&Z review from boundary line agreements. BLA's can apply to any boundary anywhere including recorded subdivisions. So look at the BLA statute:
57-1-45. Boundary line agreements.
(1) If properly executed and acknowledged as required under this chapter, an agreement between property owners designating the boundary line between their properties, when recorded in the office of the recorder of the county in which the property is located, shall act as a quitclaim deed and convey all of each party's right, title, interest, and estate in property outside the agreed boundary line that had been the subject of the boundary dispute that led to the boundary line agreement.
(2) A boundary line agreement described in Subsection (1) shall include:
(a) a legal description of the agreed upon boundary line;
(b) the signature of each grantor;
(c) a sufficient acknowledgment for each grantor's signature; and
(d) the address of each grantee for assessment purposes.
The way I read if is if there is a dispute you can agree to a line, any line, and by quitclaim deed move it to any location they agree on. This is different from the common law where the agreed line must conform to some phsyical feature treated as a boundary like a fence. In other words under the common law you can't move a line anywhere (convey property without a written documet). You can only establish the uncertain line for your title. Since the Utah BLA is defined as a quitclaim type of conveyance boundary adjustment all one needs is a dispute to settle and then you are free to move the line to any agreed location as by the required conveyance there is no violation of the statute of frauds.
So if you want to relocate your subdivision boundary between you and the neighbor to build a bigger garage what you need is a dispute over the boundary. Get a surveyor to pincushion your corner, or stake the line off the fence and you're good to go. Maybe you can throw beer cans at each other over the fence and have a dispute, dispute is not really defined. Tell P&Z to go to hell and record the quitclaim deed. You have just done a sub plat admendment, or a lot line adjustment or whatever because there was a dispute (thanks to a surveyor) and you were free to do a boundary line agreement (quitclaim boundary adjustment, which the writers of this statute have denied is its effect). So there is going to be a huge problem as all the boundaries agreed to in subdivisions and changed with quitclaim deeds don't show up on the plats and to locate need to be searched for in the deed records. So I'm sure this will soon be on a legislative agenda in the future to get this jack back in the box.
> The power and control over the boundary lines is SOLELY under the control of the landowners
One item often overlooked in discussions of landowner ability to determine property line location is that many (most?) real properties are encumbered by one or more deeds of trust. An agreement boundary could constitute fraud against the DT holder by devaluing his underlying security, so it can be argued that the DT holder needs to approve any such boundary determination. A prudent DT holder asked to approve such a thing is going to require a survey.
> > The power and control over the boundary lines is SOLELY under the control of the landowners
>
> One item often overlooked in discussions of landowner ability to determine property line location is that many (most?) real properties are encumbered by one or more deeds of trust. An agreement boundary could constitute fraud against the DT holder by devaluing his underlying security, so it can be argued that the DT holder needs to approve any such boundary determination. A prudent DT holder asked to approve such a thing is going to require a survey.
This has been addressed repeatedly, the agreement to fix an uncertain or disputed line is the location of the line as described in the deed and the deed of trust. There is no conveyance, therefore the holder of the deed of trust is bound by the agreement of the landowner(s) to settle the location of the uncertain or disputed boundary.
Leon,
Did the changes in 10-9a-103 that were proposed a few years ago, actually pass? I can't find the section where the definition of "parcel boundary adjustment" is included. Maybe I'm looking in the wrong place?
57-1-45: As I read it, it applies only IF the landowners reduced their agreement to writing, it would then "act as a quitclaim deed". I'm not interpreting it to mean that actual QC deeds need to be filed. I agree, they may have turned a written acknowledgement of a valid boundary agreement into a conveyance, however, there may be another way around that. What if, on the record of survey, you listed the required elements of agreement or acquiescense as shown in the Bahr case, and have the owners sign the survey saying they acknowledge the elements have been met?
> This has been addressed repeatedly, the agreement to fix an uncertain or disputed line is the location of the line as described in the deed and the deed of trust.
Joe buys the east half of Lot 1 (200' wide east-west according to the subdivision plat) from Jeff, the owner of Lot 1. Joe uses the proceeds from a loan in the amount of $1M to make the purchase. The appraiser used the subdivision plat to substantiate the appraisal. Joe and Jeff then agree that the boundary between their parcels is really on a line 1' west of the east boundary of Lot 1, leaving Joe's parcel 1' wide and Jeff's 199' wide. Jeff has almost all of his original land plus $1M in the bank. He writes a check to Joe for $500K.
The DT holder has a parcel 1' wide worth approximately, um, nothing, and no recourse against Joe and Jeff other than prosecution for fraud.
Question: Where's the line between the two parcels?
I just don't think you are going anywhere by insisting that surveyors are the problem rather than the solution. You are not taking into consideration the entire history and the complexity of these things (much like your attorney legislators). You have been sold a bill of goods by these folks and bought it hook, line and sinker.
Just look at the fix Leon posted below. It calls for an agreement that presumably will generate an invoice from some attorney (probably a legislators firm) in many cases. There is no requirement to delineate the area in question or to describe the new line by a surveyor or to map it. It perpetuates the very problem it purports to address, and makes certain that surveyors will continue to look like the problem because any future attempt to discern the new agreed line is sure to be as difficult or more difficult than it would have been initially. This will continue to generate legal fees for attorneys (probably a legislators firm) well into the next century.
Developers are free to divide and sell their property, but they are required to have maps made by surveyors under the law, and descriptions written from those maps. Why would that not also apply to those affirming agreed lines?
No, anarchy in land boundaries will save thousands in surveyors fees but it will increase attorney fees by 10's of thousands. This is not a good thing for the public, much as some may want to claim it is.
It's not in there yet. The bill passed and will go into effect probably in a couple months.
The enrolled version is not yet available. Scroll all the way to the end to see the new sections where there exempt from P&Z regulation.
Yeah, but is must be indexed into the title records. The filed survey wouldn't provide sufficient notice but of course would be evidence in the future. So you might have the owners swear affidavits that you have recorded. The affidavits would need to have all the descriptions cited so that it could be indexed and they would show in an abstract search for the property. I'm still not sure what the real effect would be, whether maps would be updated or not, what title insurance companies would do and such. I think there are states that have this process in their statutes.
With the affidavits recorded memorializing the landowners agreement I think it would be hard to deny the agreement later. That seems to be one of the things that so many worry about as far as agreed boundaries, that the agreement will be disputed at a later date. I'd hate to go to court and have the opposing attorney submit into evidence a sworn and recorded affidavit from the past confirming the evidence required for the agreement.
You can pull up standard BLA forms online. They are recorded but only cite the agreement and don't have quitclaim conveyance and grantors and such. The original version of the Utah statute just said a BLA acted like a quitclaim deed. Two years ago they modified it into the present form where is is required to be a quitclaim conveyance. They wanted to remove all doubt. I've been told the common law is fine by them outside of the record, they just don't want it polluting the record with agreements that are not true conveyances. If you recorded a BLA doc without the quitclaim language it would not meet the statute requirements and could be rejected and declared null and void.
I think the Utah BLA statute IS a definite quitclaim deed and is intended to be. There is a grantor and a grantee and it's cited in the actual quitclaim deed statute:
57-1-13. Form of quitclaim deed -- Effect.
(1) A conveyance of land may also be substantially in the following form:
"QUITCLAIM DEED
____ (here insert name), grantor, of ____ (insert place of residence), hereby quitclaims to ____ (insert name), grantee, of ____ (here insert place of residence), for the sum of ____ dollars, the following described tract ____ of land in ____ County, Utah, to wit: (here describe the premises).
Witness the hand of said grantor this __________(monthdayyear).
A quitclaim deed when executed as required by law shall have the effect of a conveyance of all right, title, interest, and estate of the grantor in and to the premises therein described and all rights, privileges, and appurtenances thereunto belonging, at the date of the conveyance."
(2) For a boundary line agreement operating as a quitclaim deed as described in Section 57-1-45, the boundary line agreement shall include, in addition to a legal description of the agreed upon boundary line:
(a) the signature of each grantor;
(b) a sufficient acknowledgment for each grantor's signature; and
(c) the address of each grantee for assessment purposes.
That wouldn't hold up under any common law boundary agreement doctrine that I'm aware of. It's not an agreement to settle the location of an uncertain line or a disputed line. Unless there was a fence at the location that had been treated as a boundary for twenty years acquiescence wouldn't fly either. Estoppel, well maybe but who would believe their lot was only 1 foot wide and act upon that.
Exaggerating the issue to make a point, is all I think Mr. Frame did. It still has a ring of truth to it. It certainly seems like the actual deed-holder would have a say in what is agreed to for a line. What would stop the borrower from receiving some money under the table that agrees to a fraudulent line location that devalues the property substantially, then skipping out on his debt and letting the devalued property go back to the bank?
Jim, that is another valid point.
A boundary line agreement that is litigated results in a binding decision on all parties. One that we reduce to writing in order to avoid court would need the signatures of all people with an interest in the property or those not signing could later have it nullified.
From a practical standpoint, in the case of an average boundary line agreement it would probably not be in the interest of those who could challenge it to actually do so. However, the greater danger would be the foreclosure on a pre-existing mortgage. That would destroy the agreement by law, whether the lender (who had not signed off on the agreement) liked it or not. I have not seen this happen with an agreed line, but have seen it happen with easements that people have given without getting the lender to sign off. This is true whether or not one used quit claim deeds in addition to a written agreement.
