Business Law by Tom Ramsey

Establishing Real Estate Boundaries By AgreementTom Ramsey - Business Law

January 29th, 2013 – California courts recognize the power of adjacent landowners to mutually agree on an uncertain common boundary. Such an agreement is binding on their successors-in-interest. However, the availability of this process is rather limited.

Inasmuch as the effect of establishment of title to land by agreed boundary is rather far-reaching, before it can be utilized the following must exist. First, there must be a true uncertainty concerning the boundary. Second, an actual agreement between the owners concerning the uncertain boundary must have actually been entered into. Finally, acceptance and acquiescence in the boundary so established must have existed at least until the first date on which the statute of limitations would prevent a challenge to the agreement, or under such circumstances that substantial loss would be caused by another change in the boundary.

In applying these requirements, the courts have held that the doctrine should not be applied when the true boundary is ascertainable from legal descriptions set forth in an existing recorded deed or by a recorded survey. Additionally, it should not be applied where there is no evidence that the neighboring owners actually entered into an agreement to resolve a bona fide boundary dispute.

An illustration of the limits on the applicability of this concept is found in a recent Court of Appeal case.

The Martins and another owned a 240-acre parcel of land in Paso Robles. It is improved with a residence and a vineyard. A contiguous parcel consisting of a residence and an almond orchard is owned by Van Bergen and another. The common boundary between the parcels is about 1,300 feet long. A fence runs parallel to a portion of the boundary.

The known history of the two parcels dates back to 1947, the year that the predecessors-in-interest of the Van Bergen parcel planted the almond trees. An existing fence in the area replaced an earlier one. Both fences were at the same location. At that time, both property owners assumed that the fence marked the boundary. Apparently the trees were planted only on the Van Bergen side of the fence. Until the present owners took title, there was no dispute concerning the location of the common boundary: Everyone believed it was marked by the fence.

In 2005, three surveys were performed to establish the boundary. Two surveys concluded that the existing fence did not define any of the common boundary. In fact, the common boundary established by the two surveys resulted in a portion of Van Bergen’s orchard encroaching on Martins’ property. A third survey came to a different conclusion. Each survey was recorded in the office of the San Luis Obispo County Recorder.

The Martins initiated a lawsuit to quiet title to that portion of the property which had been assumed to belong to Van Bergen but which the surveys showed as being owned by the Martins. Van Bergen argued that the assumed boundary, marked in part by the old fence, should be honored because it was based on an agreement between the two property owners. The trial court concluded that the doctrine of boundary by agreement did not apply. It found that the two recorded surveys with similar findings established the true boundary and that the third survey was in error. In effect, the trial court finding in favor of the Martins was based on the boundary established by the two recorded surveys.

VanBergen appealed.

The Court of Appeal found that the process of establishing a boundary by agreement cannot be applied here.

First, there was no uncertainty about the common border. The predecessors-in-interest of both property owners agreed that the boundary was evidenced by the initial fence and its replacement. In this setting, there could not have been any agreement resolving any uncertainty concerning the location of the boundary.

Second, two recorded surveys accurately established the boundary.

The judgment of the trial court was affirmed.

The case was decided in 2012. It is entitled Martin v. Van Bergen.

(Tom Ramsey is a Long Beach attorney who has specialized in business law for more than 40 years. He may be reached at bizlawwiz@aol.com.)