Distinguishing Between Boundary by Acquiescence and Boundary by Agreement: A State Supreme Court Offers Useful Guidance

Gregory M. Stein Professor of , University of Tennessee, Knoxville, TN December 2016

It is not unusual for a real lawyer to handle a transaction in which neighboring landowners disagree as to the precise location of the boundary between their parcels. In addressing the resulting confusion, lawyers and courts commonly use the terms “boundary by acquiescence,” “boundary by agreement,” and “adverse ,” often without focusing on – or even fully understanding – the differences among these concepts. A recent decision of the Utah Supreme Court, Anderson v. Fautin, 2016 UT 22, 2016 WL 3093137, focused on these distinctions. The outcome was important to the parties, of course, but the case is instructive and helpful to other owners and their lawyers. By thinking about the differences among these concepts before a dispute arises, the astute lawyer will both understand these differences and reduce the odds of confusing these concepts in the future.

The facts of the case are straightforward and present the issue with great clarity. Mr. Anderson owned vacant land that he had failed to visit for 26 years. Ms. Fautin owned adjacent land which she occupied up to a fence that separates the two parcels. A survey later showed that the fence encroached on Mr. Anderson’s land. The fence had already been there for decades when Ms. Fautin acquired her property, though she subsequently replaced it at the same location.

Mr. Anderson sought to quite to the strip of land located between this mislocated fence and the surveyed boundary line between their lots; Ms. Fautin responded by claiming title to the strip under the doctrine of “boundary by acquiescence.” The trial court granted her motion for summary judgment and recognized her title to the disputed land, the intermediate appellate court affirmed, and the Utah Supreme Court here unanimously affirmed (4-0, with one not participating) while disavowing some older case law that disagreed with this outcome. The argument that Mr. Anderson raised unsuccessfully was that there cannot be a boundary by acquiescence unless both property owners occupy their property up to the agreed boundary.

The court begins its analysis by listing the elements of boundary by acquiescence in Utah. While these elements may vary somewhat from state to state, it is likely that most practitioners operate in states with fairly similar definitions. The elements the court listed are: (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in this line; (3) for at least 20 years; (4) by adjoining landowners. Mr. Anderson argued that there was no “occupation” on his part, while Ms. Fautin responded that only the claimant has to occupy up to the line, with the other party’s relevant, if at all, only with respect to “acquiescence.”

The court conceded that is had been inconsistent in its prior cases. At this point, it highlighted the distinctions between “boundary by acquiescence” and “boundary by agreement.” Moreover, it noted that boundary by agreement is a close relative of the more general doctrine of adverse

possession. In this case, however, neither of those last two concepts was relevant, since the only issue the dispute raised was whether the parties had met the elements of boundary by acquiescence.

The contrasting concept of “boundary by agreement” requires the parties to meet four somewhat different elements: (1) agreement between adjoining landowners; (2) settling an uncertain or disputed boundary; (3) showing injury would occur if the boundary were not upheld; and (4) if successors are involved, showing a demarcation that put them on notice.

The confusion in Utah arose, the Court notes, because in early boundary by acquiescence cases, the court looked for “implied agreements,” leading it to rely on principles. To find the requisite implied agreement, the court would look for mutual occupancy. After all, you cannot have an implied agreement with only one occupant, and the nonclaimant’s occupancy was required to show both its acceptance and its notice of the agreed line. Thus, the earlier cases concluded that a showing of “acquiescence” really was nothing more than a demonstration of mutual agreement.

Later cases began to rectify this error by treating boundary by acquiescence as a type of adverse possession. The question in these later cases was whether the occupier’s possession put the nonclaimant on notice. Boundary by acquiescence cases came to recognize that the nonclaimant should have objected but did not, in effect consenting by silence. This standard is much like the one employed in adverse possession cases, in which the nonclaimant is penalized for indolence. Thus, the goal in more recent boundary by acquiescence cases is not to find any type of implied agreement. Rather, the court asks if the claimant’s possession provided notice to the nonclaimant. (The court also noted that in Utah, as in some other Western states, acquiring title by adverse possession requires that the claimant pay real estate taxes. Because this happens so rarely, the doctrine of boundary by acquiescence fills the gap.)

As a result, the court acknowledged that a finding that there is a boundary by acquiescence now requires: (1) a visible line marked by monuments, fences, or buildings; (2) claimant’s occupation up to that line in a way that gives reasonable notice to the neighbor that claimant is treating this line as the boundary; (3) mutual acquiescence in this line; (d) for at least 20 years. Applying this clarified test here, the court concluded that Mr. Anderson’s argument fails and that Ms. Fautin retains possession of the disputed strip of land.

There are numerous features of this case to like. It does a nice, thorough job of distinguishing between two doctrines that are similar enough that judges and lawyers easily can mix them up. Colloquially, it is easy to believe that “acquiescence” and “agreement” mean the same thing, but agreement actually requires more of an affirmation by both parties than acquiescence does. The case thus provides a good focus on the importance of precise language. It is a well-written, thoughtful, and comprehensive opinion on a somewhat arcane topic. The judges probably had to learn or relearn something that they either never knew or forgot soon after law school. They had to digest this knowledge and clarify the law in a sensible way. And they probably got it right.