If a state had a statute that a boundary line agreement must have grantors and grantees and be in the form of a quit claim deed, could acquiescence even exist?
Does the statute purport to cover unwritten agreements as well as written?
It says unwritten agreements are not valid?
Such a statute would only hit the pavement when someone wanted to record. So what do you do if some landowners without any dispute want to put there acquiescence to a boundary into the record (new and improved description). At that point they would need to convey land. The boundary has been established between them because there was uncertainty and they have lived with and respected the boundary for many decades. They don't want to change it just get an update of their description, maybe due to a new subdivision or something.
So with this sort of statute they need to convey, have grantors and grantees. How do you describe what each is conveying, the only line they know is the established one. I suppose you could do some phony survey and show an opinion of the record line off from their agreed line, have them convey from there, but then there is a winner and loser, a dispute, everything sort does downhill from there.
So take that logic further. If you have to grant land by quitclaim deed in the end to have a record boundary line agreement, why would acquiescence even be a consideration. I suppose you could acquiesce until some issue over the poor description and uncertainty of the boundary came up and then you would need to convey but really then acquiescence doesn't really exist does it?
Most boundary line agreement doctrine states that boundary agreements DO NOT CONVEY title. So wouldn't this sort of statute just throw all the common law on the subject out the window. Seems there is no end to stupid stuff people will try to get enacted into law.
BTW this concept is advocated by Robillard in Clark on Surveying and Boundaries, 7th Edition, top of page 682.
I wonder how many states have taken the bait and gone down this idiotic path?
I can just imagine some future court case where they are duking it out over a boundary line where acquiescence (or any of the boundary agreement doctrines for that matter) and an attorney asks this about the statute: Where are the grantors and grantees to this boundary line agreement Judge?
Yup, I can't wait for that one!
It sounds to me like you want the doctrine of acquiesence to supplant the statute of frauds. The doctrine is needed as a remedy for legitimate uncertainty or dispute, but was never intended as a sweeping change from the law that requires written transfers of real property.
If it takes a "phony" survey to come up with a "phony" dispute or uncertainty, then acquiesence probably should not be on the table as an answer. Likewise, if the surveyor can't find and describe the supposed agreed line, then there isn't enough of a physical structure for the landowners to have reasonably relied on as the true boundary.
The "grant" by quitclaim does the same thing as a judgement from the court. It settles the "claim" regardless of the truth. It does not necessarily "grant" or "convey" a parcel of land anymore than the court decision does. It does "grant" an end to a claim that may or may not have succeeded in court.
When settled out of court in a written document it is necessarily a written contract. The consideration (in order to make it a valid and enforceable written contract) is typically the settlement of the claim or uncertainty. In that case it is valid to say that there is no conveyance of property.
If you have a jurisdiction where actual uncertainty is not needed, then you are in fact conveying property. In that case you have to assume the legal fiction that the parties each owned something on the other side of the line and the consideration is one parcel for the other.
I suppose one could write the statute to require the wording in the quit claim deeds to include a "claimor" and a "claimee" in the appropriate circumstances.
There is simply no way that modern jurisdictions are going to allow people to agree on boundary lines anytime and anywhere just to avoid the requirements of written transfers.
According to long established common law in my state, agreements to establish the location of uncertain or disputed boundaries are not controlled by the Statute of Frauds because they are NOT transfers of title. Here is the case law:
“An oral agreement, however, fixing a dividing line between adjoining landowners is not within the statute of frauds when the true line is uncertain or in dispute, because such agreement is not regarded as passing title to land but "determines the location of the existing estate of each, and, when followed by possession and occupancy, binds them, not by way of passing title, but as determining the true location of the boundary line between their lands." Berghoefer v. Frazier, 150 Ill. 577, 37 N.E. 914.” Tripp v. Bagley, 74 Utah 57, 276 P. 912 (Utah 12/11/1928)
“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.” Brown v. Milliner, 120 Utah 16, 232 P.2d 202 (06/01/1951)
It's a landowners right to settle their uncertain boundaries with their neighbors. Why should government try to get in the middle of it? Why should they be forced to convey when the line that is to be conveyed from is unknown. Yeah if the line is known and they want to RELOCATE the boundary then a conveyance is definitely needed. AGAIN, it's a landowners right to settle their uncertain boundaries with their neighbors. Why should government try to get in the middle of it?
I'm in total agreement with your last sentence "There is simply no way that modern jurisdictions are going to allow people to agree on boundary lines anytime and anywhere just to avoid the requirements of written transfers." I am either misunderstood down through the years are have a weak writing style that readers would think otherwise. I'm not for a free for all regarding boundaries, just what the courts have given us.
The remainder of your post is a good summary of how things might be different in various jurisdictions. My jurisdiction has common law developed in one way. We now have some trying to over turn the long established common law by statute. There are other implications such as all transfers of title changing existing parcel boundaries (adjustments) are regulated by zoning ordinances. This change in law may make EVERY boundary line agreement subject to fees, a land use application and public review. Yeah, we are really going to make headway cleaning up the mess under those regulations.
My reference to phony survey was not to create uncertainty, but rather a way to get a line in an uncertain situation to convey from to settle the agreement, tongue in cheek, so to speak.
The statute would be in violation of 'public policy'! Check Black's for the definition of alienation:
Alienation
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.
Restraint on Alienation
A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.
The following is from Oklahoma law:
§60 31. Suspension of alienation.
The absolute power of alienation shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition plus twenty one (21) years, except as provided in Section 34 of Title 60 of the Oklahoma Statutes.
R.L.1910, § 6607.
§60 34. Contingent remainder in fee, on prior remainder.
A contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited die under the age of twenty one (21) years, or upon any other contingency by which the estate of such persons may be determined before they attain majority.
Richard Schaut
