LOT LINE DISPUTES
By Jeffrey L. Marcus*
February 2004

Introduction:

Lot line disputes are common and can be expensive, time consuming and emotionally trying to the coterminous property owners.  The following demonstrates an unfortunate lot line dispute, how equitable legal principles apply to lot line disputes and recommendations to shield a buyer from a lot line dispute.

Factual Setting:

Mr. Buyer purchases his multi-million dollar home consisting of a spacious yard with a pool, sport court and riding stable.  A fence, installed 25 years ago by the developer of the tract separates Mr. Buyer’s yard from Nasty Neighbor’s yard.  Nasty Neighbor decides to further improve his yard and through a land survey learns that part of Mr. Buyer’s pool, sport court and riding stable encroaches on his property.  According to Nasty Neighbor’s land survey, the fence is not located at the true boundary line and he wants the fence relocated.  Mr. Buyer investigates, which results in confirmation of the improper fence location and his non-payment of taxes for the encroached property.

Whether in a residential or commercial setting, this type of lot line dispute is not uncommon.  The following discussion sets forth Mr. Buyer’s legal rights.

Boundary Disputes Generally:

Three legal doctrines are sometimes available to Mr. Buyer: (i) quiet title action under agreed boundary, (ii) adverse possession, and (iii) easement by prescription.  These doctrines share some similar elements, but have distinct requirements and different legal effects.  Adverse possession generally requires the payment of taxes for the encroached property.  Easement by prescription generally does not entitle Mr. Buyer to maintain his improvements on Nasty Neighbor’s property and sometimes does not apply to a residential boundary dispute.  Quiet title by agreed boundary may be a viable theory.[1]

Quiet Title to Real Property by Agreed Boundary:

When a boundary line is uncertain or ambiguous, adjoining landowners may establish the boundary by a tacit agreement.  There are three elements to establish a boundary by agreement.

1)      Uncertainty As to the True Boundary Line:

For Mr. Buyer to maintain the fence in its present location, he must demonstrate that uncertainty existed between him and Nasty Neighbor concerning the fence location.  Uncertainty may be inferred from the circumstances.  Both parties improved their respective properties up to the fence, therefore, it is inferred that until recently neither Mr. Buyer nor Nasty Neighbor knew of the true boundary line. 

2)      Agreement:

A party seeking to invoke the agreed boundary doctrine must demonstrate that the adjoining landowners mutually agreed to establish a boundary. The agreement may be implied from long acquiescence of a boundary that was established upon a doubtful or disputed property line.  Here, Mr. Buyer, Nasty Neighbor and their respective predecessors acquiesced to the location of the fence as the true boundary.  The acquiescence may also be established by Mr. Buyer’s improvements and occupancy on the encroached property.  The longstanding fence likely establishes a boundary agreement.

3)      Statutory Period of Use:

The adjoining landowners must accept the fence as the true boundary line for at least five years.

Effect Of Agreed Boundary:

Once established, the agreed boundary line becomes the true line and is binding whether or not the party claiming the land up to the agreed boundary has been paying the property taxes on that land.  Boundaries established by agreed boundary are binding on the parties to the agreement and on their successors.

Conclusion:

Land surveys are not required and are generally not the norm in the purchase and sale of real property.  To protect your prospective property from a lot line dispute, it is recommended that you obtain extended title insurance to protect and insure your lot line or hire a surveyor.

This newsletter is published for the interest of friends, clients and prospective clients of the Law Offices of Jeffrey L. Marcus.  Individual facts and circumstances usually differ from hypothetical situations.  The analysis set forth herein should not be relied upon or considered as legal advice without the further involvement of an attorney.  

 *Jeffrey L. Marcus, Esq. provides litigation services and transactional advice to the firm’s clients.  He has more than 14 years’ experience in private and corporate practices involving real estate and business transactions.  Mr. Marcus can be contacted at jeff@marcuslawgroup.com or at the above address/telephone number.