> Sounds like a seminar in the making, to me.;-)
Not what I had in mind when starting this thread; but, now that you mention it .... hummmm. Maybe.
Larry P
The 'Statute of Frauds' garbage.
Here in the US, the statute of frauds is applied differently than in England, Canada, Australia or New Zealand.
Here, while the statute of frauds requires an accurate record description of the property as sold, it cannot and does not restrict the land owners rights under the definition of Alienation in Black's dictionary.
Justice Cooley recognized this type of problem with the American's use of English law in the 1880's and he specifically states a caution in the treatise titled "Some Suggestions for the Study of the Law" which is a preface in his 4th edition of "Cooley's Blackstone", the following is an excerpt:
All history teaches us that different peoples, or even the same people in different stages of advancement, are not to be governed by the like modes and forms; and while we all concede this as a general rule, we are too apt, perhaps, when we compare with our own the system which prevails in the country from which we have mainly derived our ideas of government and law, to forget that we erected our structure on foundation ideas of democracy which never pervaded in the governing classes in Great Britian, and that the aristocratic sentiment, which is there controlling, is here, in a political point of view, insignificant.
The 'controlling sentiment' that is supposed to prevail here is the rights of the individual, refered to in the Declaration of Independence and our Constitution; which, over time, were to be defined and protected, not subsumed by the vagaries of a failed legal system.
What are your rights as a land owner here in the US? If you don't know what your rights are, how can you function in a profession whos primary responsibility is to help other protect those rights?
Richard Schaut
TPR
> That doesn’t mean they didn’t do so by accident.
If you review the cases you will find that if the boundary is ascertainable with some certainty by running out the deed the boundary by agreement claim will usually fail in court - at least in Oregon.
Brian
The case that you just cited is about as clear as it can get!
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 think for a minute about BLM subdivision of sections and the fact that nobody in the section, (including BLM land managers) knew where the boundaries are/were, should we think that land as been transferred when the boundaries are then discovered and they are not necessarily at the exact intersection of centerlines and might be at local established boundaries and confirmed by the BLM subdivision of section survey.
Are we to think that the boundaries changed if in fact the aliquot part boundaries are not at the exact position as directed in Chapter 3 of the Manual. Sort of a loaded question and could be answered by those who think they believe that only Chapter 3 procedures can be used in the subdivision of sections.
Keith
TPR
I've been trying to stay out of this discussion, as I find it very rewarding that so many have come to understand the true meaning of a boundary agreement and its affect on a boundary line location apart from any matter of title, or exchange of title (I'm also just too busy).
> Now, I think Lucas needs to explain further how you can have an "expressed" boundary line agreement that's not in writing?
An "expressed" agreement can include "oral" expressions or "written" expressions. A third "expression" is the "implied" agreement, however, there is no outward "expression" except through perceived actions rather than through an actual expression. Therefore, "implied" agreements are proven by actions over a long period of time, rather than by faded evidence of the now-lost direct expression which is presumed to have occurred in the distant past.
>Doesn't that violate the Statute of Frauds? If it's a contract, and it involves land, it has to be writing.
That is the very heart of the issue which distinguishes the expressed contract to establish the boundary as not affecting title. I used to think as Pseudo is thinking. I thought the location of the boundary and the extent of the title were synonymous. They clearly are not. The ownership of the land (title law) and the location of the boundary (boundary law) are two completely separate and distinct areas of law. The location of the boundary determines the extent of the title. Each owner holds title to their common boundary.
When the location of the boundary is unknown, uncertain, or in dispute, the expressed agreement of the landowners, simply removes the uncertainty, settles the dispute, and makes the unknown, known. No title has exchanged. No new boundary has been created. Each owner still owns to the boundary. And, the boundary is located where it was always intended. That's the one that bends the surveyors analytical brain. It's not a new boundary in a different location. The law says, it's the same boundary in the same location; we just now know where it has always been with clarity and certainty (which was lacking prior to the agreement).
>Oral contracts are not good enough, and a court should throw that out in a heartbeat.
When landowners enter an agreement (contract) with one another to mutually establish the location of their boundary, they are simply entering a contract. Yes, oral contracts will be upheld by the courts, but written contracts are much preferred because the terms won't fade with memory over time. Written contracts are more reliable. Contracts (agreements) intended to fix a boundary location are not intended to transfer title to property and are, therefore exempt from the "statute of frauds." This is a universal concept.
> But like we seemed to agree upon earlier, just because they were not aware at the time of the agreement that one party was losing/gaining land, doesn't mean that the loss/gain didn't happen.
The loss/gain of land is a surveyor's perception, not the perception of the landowners or the law. The landowners didn't intend to convey property; the statute of frauds (and the P&Z office) forbids them from exchanging property orally; and, the agreement doesn't include the conveyance of any property. There can be no gain/loss of title without 1) intent, and 2) written conveyance. The agreement establishing the boundary location contains neither.
JBS
Brian
What a great discussion.
My only other point might be that properties can exchange hands, but the concept of agreeing on a line is not the same concept of transferring property. If it becomes a transfer, it just simply is no longer a boundary by agreement the way I see it.
If a judge says that one owner "gained" land, then the judge is declaring that property was exchanged and the use of the term boundary line agreement, would no longer apply. He would be changing the acreage of the land. It would also "imply" that the county could start charging taxes on a larger area of ground.....also against the concept of a boundary line agreement. (I think).
Title law and Boundary law
There is no true distinction between title law and boundary law except that lawyers cannot determine the existence nor boundaries of parcels of land, therefore the accurate physical location of titled property is the surveyors responsibility; whether it is a new or existing parcel of land. Remember, title to allodial land is established by unchallenged occupation and control and the basis for challenge must rest on occupation and control.
If you understand the basics of land ownership here in the US, you would understand that a surveyor can provide a more complete title opinion that a lawyer can.
Study the apprasial of title material I have posted; keeping in mind that the material was scanned from a law school textbook.
Richard Schaut
Title law and Boundary law
>Before further discussing the trial court's rulings with respect to the surveys we pause to state an established rule. It is that surveys merely establish boundary lines. They do not determine title to land involved. The subject of title is no concern of the surveyor. (Swarz v. Ramala, 63 Kan. 633, 66 P. 649; Wagner v. Thompson, 163 Kan. 662, 186 P.2d 278.)” In re Moore, 173 Kan. 820, 252 P.2d 875 (Kan. 01/24/1953)
JBS
Also Backman & Thomas
Backman & Thomas's "A Practical Guide to Disputes Between Adjoining Landowners - Easements", published by Matthew Bender Div. of LexisNexis has the following as part of the Intro to Chp 8:
8.01 Introduction and Chapter Overview
Setting boundaries between adjoining properties is a commonly recurring problem. Care should be taken in the first instance to use an accurate description in all transactions involving real property. The first section of the chapter explores judicial doctrines of construction utilized in choosing between alternative possibilities of meaning of ambiguously stated property descriptions.
The record description of a property boundary is merely the first element in establishing the actual boundary line between properties. In order to establish the actual location of the boundary, property owners are regularly assisted by professional surveyors who scientifically determine the location on the ground.
Property surveys are the surest means of establishing an accurate boundary. Because they involve an additional expense in the conveyance of properties, however, many property owners disregard this measure of safety. As a consequence, a number of doctrines have been established in order to give recognition to boundaries which have been set by the acts of one or both of the adjoining property owners.1 In addition to adverse possession, considered in Chapter 7 supra, boundary disputes may also be settled through the application of three other judicial doctrines—boundary by agreement,2 boundary by acquiescence3 and boundary by estoppel.4 Under these three doctrines, adjoining owners may create a boundary that differs from the record description if that boundary has been established and recognized for a substantial period of time. All of these doctrines are intended to achieve similar policy objectives, i.e., to promote efficient use of property, to reduce litigation, to establish a status of repose, to remove stale claims, and to avoid the necessity of producing evidence as to events from the distant past.5The three boundary doctrines should be distinguished from the doctrine of title by adverse possession.6 Although all of them have the effect of recognizing an established boundary line even though it conflicts with the boundary set by the recorded descriptions,7 adverse possession alone requires a showing of hostile intent on the part of the adverse possessor. In some jurisdictions, the fact that a boundary line has been placed in the wrong location due to an honest but mistaken claim precludes the necessary finding of hostility.8 The three boundary doctrines, in contrast, all involve situations in which the encroachment by one adjoining owner beyond the record boundary line is done with knowledge and involves permission. These doctrines could have in fact been developed to overcome the difficulties of proving hostility in order to claim title by adverse possession.
The numbers at the ends of some sentences are footnotes citing legal cases from various states or general legal reference material.
This is a loose-leaf, two volumn set of material, annually updated, covering material that is necessary for any boundary surveyor.
Richard Schaut
Adam
Yes, this topic has been very interesting. In thinking about this stuff, I've found the following concept as quoted below, very helpful in wrapping my mind around certain issues.
What are the boundaries is a question of law, and where the boundaries are is a question of fact." Rusha v. Little,309 A.2d 867, 869 (Me. 1973); Texas Co. v. Andrade, 52 S.W.2d 1063 (Tex. Civ. App. 1932).
A transfer of land changes the "what", whereas a boundary by agreement, acquiescence, or even a boundary line agreement (depending on the form taken) only changes the "where".
As far as that goes
The judge is right in that the surveyor does not establish title, that was done by the one who occupies and controls the land, the surveyor merely determines when the record description needs to be corrected to meet the accuracy requirements needed by society at the time of the property sale, thereby removing a cloud on the title.
The surveyor, not the courts, makes the determination regarding what was the parcel that the owner established title to. The court can review the surveyor's decision but when the surveyor fails to do his job, the courts must limit themselves to the record because neither attorneys nor judges have the ability to enter onto the land, recover and analyze physical evidence.
Therefore the distinction is not title per se, the distinction not very clearly defines the surveyor's area of expertise regarding land titles.
Again, I refer you to the law school text material that defines the 19 title defects, three classes of which will only be discovered by surveyor, not attorneys nor the courts, and the fact that only surveyor can discover and correct these defects does not defeat the fact that they are title defects.
This limitation on our courts is minimised by knowledgable judges who arrange for a field trip for the jury so that the physical evidence is examined by them berfore reaching their verdict.
There is a lot of imperfection in our legal system, much of which we need not tolerate if we understand the alternate dispute resolution statutes, both federal and state.
Richard Schaut
Brian
>
> A transfer of land changes the "what", whereas a boundary by agreement, acquiescence, or even a boundary line agreement (depending on the form taken) only changes the "where".
Instead of "changes the 'where'" I would say "establishes" or "determines" the where.
Although it might happen in other cases, I think that the boundary line agreement, is generally used when the actual line is unknown and the parties effected by the line's location agree on finalizing it. ("boundary by agreement" I need to learn more about.)
Adam
I stand corrected. My fingers work faster than my brain sometimes.
Considering my typing speed - that IS scary!
A boundary line agreement (I'm assuming you are referring to the written ones we sometimes prepare) is one type of Boundary by agreement.
TPR
That hasn't been my experience with the case law I've read regarding Florida. I've never seen a "boundary by agreement" verdict thrown out by the Appeals court because the line was "surveyable".
It seems that the situation most often is that the property goes unsurveyed for several decades, fences are built by guesswork, then once someone decides to get a survey it is discovered that the fences were built in the wrong place. Most often the cases that I see reversed are not reversed because the deed line was easily "surveyable", but because the Appeals court beleive that the burden of proving uncertainity by both parties was not met. In some Florida cases, boundary by agreement or acquiescence have been thrown out or denied because both parties claimed to beleive the fence was the true line. There was no known "uncertianty" in those cases, since both parties claimed they were certain the fence line was along the deed line .... until the surveyor came along.
Yet, in other cases, the courts have found that the existence of a fenceline in the wrong place, that was assumed to be along the deed boundary, is enough proof of "uncertainity".
Brian
I get the typing errors. I wrote "know" when I meant "no" somewhere above. Too late to correct. I knew I meant "no". I wasn't doubtful which version to use. Sometimes my head says a word, I don't think the individual letters to spell it, my fingers just spell whatever word my head said. I guess I need to slow down and read what my fingers typed sometimes.
Now I re-read the above, and am not sure that makes sense.....oh well....[submit]:-P
Here is a simple and common example not mentioned yet (I think):
Annexation
As when one municipality is annexed by another. Here in Ohio the transfer of all municipally owned property is transferred by the passage and recording of the ordinances by the municipalities involved. Deeds are not required.
enclosed is a good read, from a local case. 48 page long report. i am currently reading it
http://courts.state.md.us/opinions/coa/2002/65a01.pdf