That Fence Has Been There For Years – What Do You Mean The Property Isn’t Mine??

For the vast majority of those of us who own land, we can usually determine the boundary lines of our property by referring back to our deed.  The deed is the legal document that conveyed, or transferred, the property to us from the previous owner.  There are however, situations where the boundaries of the property that we regularly use – and believe that we own – do not match up with the deeds and recorded boundary lines.  Therein lies a problem.

Let’s say Susan builds a fence on what she believes is “her property”.  Susan then uses the property inside the fenceline, mowing and landscaping, or maybe harvesting and grazing.  However, assume that Susan actually places her fence 10 feet onto her neighbor Bob’s property.  Bob doesn’t say anything about the fenceline for years and years because he also believes that the boundary between the two properties is exactly where Susan built the fence.  In such a situation, if Bob later realizes that his deed is not consistent with Susan’s fence, can Bob now regain the portion of his property that was deeded to him, but which Susan has been using? Depending on the facts, the answer may very well be “no,” i.e., the property inside Susan’s fenceline will now legally belong to Susan, not to Bob.

Utah law recognizes a principle called “boundary by acquiescence,” which can potentially prevent Bob from later pointing to the boundary descriptions in his deed and claiming that he still owns the land that Susan (or in some cases, even Susan’s successors) have used for decades.  Recently reiterated again in the 2016 Utah Supreme Court, Anderson v. Fautin, boundary by acquiescence can be created if four important steps have been met.

The first step is proving that there has been a “visible line” that is marked by fences, buildings, or even natural features on the land, like hedges or trees. Whatever has been used to mark the boundary line must be conspicuous and visible.

Second, the property owner (and potentially predecessors, i.e. the previous owners of the land) must have occupied the neighboring property in such a way that the neighboring land owner (and potentially the neighbor’s predecessors) should have been aware of the observable boundary line. Essentially, there must not only be a visible line – but also occupying the land so that the neighboring land owner is, or should have been aware, that “Susan” is using the property within the boundary as her own.

Third, there must be a “mutual acquiescence” between the neighboring landowners (or potentially their predecessors) regarding the observed boundary line.  “Acquiescence” is another word for “acceptance,” while “mutual” in this context essentially means that two people agree. Although “mutual acquiescence” sounds like it might require a handshake, or some form of affirmative agreement on the location of a boundary line, the Utah Supreme Court has said that proof that a mutual agreement exists may be based on a neighbor’s failure to object when a fence is built and the land is utilized by someone else.  Remaining silent, when a property owner otherwise has a duty to speak up, can in some cases constitute “mutual acquiescence”.

Finally, the observed boundary line must have existed and been observed for a long period of time – at least twenty (20) years.  Utah law effectively allows this time frame to “stack” from one property owner to the next.  It doesn’t require that “Susan” be the person who originally established the boundary line– it could have instead been established by the previous owners, so long as the total amount of time that the boundary line has remained is at least 20 years.

This legal concept of boundary by acquiescence arises often enough, and it can get a little bit complicated to unravel. If you own land in Utah that is subject to a boundary line dispute, you should contact a Utah Attorney to assist you in determining whether the intricate, boundary-by-acquiescence principal applies to your boundary dispute. Call Daniel W. McKay & Associates, PLLC today to speak with a competent, experienced, Utah Attorney.

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