Advisories & Insights

The Agreed-Boundary Doctrine: Acquiescence in Fence Location Does Not Establish New Property Boundary Line

October, 2012
By Ronald L. Richman

Even if a property owner acquiesces to the placement of a fence encroaching on his or her property, this does not mean the fence becomes the new property boundary line.

The California Court of Appeal, in Martin v. Van Bergen (2012) 146 Cal. Rptr. 3d 667, held a fence encroaching on the plaintiffs' property was not deemed to be the new property boundary line when the plaintiffs never agreed the fence was the new property boundary line and the actual boundary line could be determined from the description in the plaintiffs' deed, or by survey.

Under the agreed-boundary doctrine, a property owner may establish title to a portion of a neighbor's property if each of the following requirements is met: (1) there is an uncertainty about the true property boundary line; (2) there is an agreement between the property owners about the new property boundary line; and (3) there is an acceptance and acquiescence in the new property boundary line for at least five years, or a lesser period of time if the party claiming title can show he or she will suffer a substantial loss if the court refuses to acknowledge the new property boundary line.

California courts will not apply the agreed-boundary doctrine to resolve property boundary disputes when there is no evidence that neighboring property owners entered into an agreement to resolve a boundary dispute and the true boundary line can be determined from the legal description in an existing deed or by a survey. Courts narrowly apply the agreed-boundary doctrine because they do not want to allow accurate legal descriptions in deeds to be invalidated because property owners are relying on boundaries created by fences, bushes, or other similar inexact means.

In Martin, the plaintiffs brought an action to quiet title to their property (to resolve a boundary line dispute) after discovering the fence between their property and a neighbor's encroached onto their property. The defendant, asserting the agreed-boundary doctrine, claimed the fence was the new property boundary line because there was never a disagreement about the location of the fence. He also asserted that because different surveys placed the boundary line at different locations, there was uncertainty about the true location of the boundary line. The Court found in favor of the plaintiffs, refusing to apply the agreed-boundary line doctrine because: (1) even though there were conflicting surveys, there was an accurate survey of the properties establishing the property boundary line and removing any uncertainty about it; (2) there was no evidence the parties ever agreed that the location of the fence would be the new property boundary line; and (3) the defendant was unable to show he would suffer a substantial loss by honoring the true property boundary line.

In Martin, the plaintiffs brought the quiet title action within four years of purchasing the property. While the plaintiffs prevailed, their approach was quite risky. By acquiescing in the location of the fence without confirming the location of the true property boundary line, the plaintiffs risked losing a portion of their property via a prescriptive easement. A prescriptive easement is the right to use the land of another. Had the plaintiffs waited just one more year to file suit to confirm the property boundary line, i.e., five years, the period of time in which a prescriptive easement can arise, the fence may have become the new property boundary line.

The best practice is to have a professional review the legal description in an existing deed and confirm the property boundary line by survey prior to agreeing to the location of a fence between adjacent properties.

Ron Richman is the Shareholder-In-Charge of the San Francisco Office of Bullivant Houser Bailey PC. Mr. Richman specializes in title, real estate, construction, general and commercial litigation and counseling. Please e-mail him at ron.richman@bullivant.com or visit www.bullivant.com for more information.

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