Saturday, April 17, 2021
Is That Old Fence Really the Boundary?
For rural properties, fences are generally considered by the landowners to be the boundaries. But by law, the actual boundary is an imaginary line that is located according to the property description in the deeds to the properties. It’s this discrepancy between the existing fence and the legal boundary that can create issues between adjacent landowners. How is this issue resolved? What factors are relevant in determining where the actual boundary is located.
I am revisiting a topic I have written about in the past because the questions continue to come up. There may also be new readers to the blog that haven’t read my prior posts dealing with this topic. So going over things again can’t hurt.
Old fences and boundaries – it’s the topic of today’s post.
An existing fence is typically considered to be evidence of where the imaginary line between two properties is located. It matters little whether the fence is permanent or not. But, it is also possible (and in many instances, likely) that an old fence has been used as part of the description of the land as the property has changed hands. It’s not unusual for a farm property to be sold according to the existing fence lines.
Metes and bounds. In the eastern one-third of the United States, land descriptions are likely to be “metes and bounds” descriptions. With this type of description, a tract of land is described by a series of directions that trace the perimeter of the land. Such tracing might include following an old fence.
General location. In some rural areas, I have seen deeds refer to the boundary of a farm by general location, such as “The old Snarkfeltcher place on Highway 47, three miles east of the Dinwiddie junction.” With a description such as that, the boundary of the farm is the physical boundary where the land abuts an adjoining tract of land. It might very well be marked by an existing fence, which the parties intend to use as the boundary.
Note: In either the situation where a metes and bounds description or a general location description is used, the fence may actually be considered to be the permanent boundary marker. If the fence later deteriorates, it may be necessary to relocate (recreate) the fence to precisely determined the boundary.
Survey. Presently, it is common for a tract of land to be described in a way that requires the mapping out of survey lines. This is common when the land is such that a survey is easy to conduct. For some rural properties, however, the topography of the land may be such that there really isn’t a good way to do a survey at an economical price. In this situation, an existing fence may not be built on the boundary line, but it is treated as the boundary by the adjoining landowners. Indeed, it is often the case that prior adjoining owners agreed to build the fence to one side of the actual boundary line as a matter of convenience – to get around thick brush or trees or water or some other obstacle. When this has happened, the fence was not intended to be the boundary line – at least not originally. But, with the passage of time the fence may come to be thought of as marking the boundary regardless of whether it actually does.
Existing Fence Line As Actual Boundary
Those fences that are not on the true boundary (perhaps as revealed by a subsequent survey), are what give rise to disputes. If I were to track the questions that I get by category, I would say that, after tax and estate/business planning questions, issues with fences (and leases) trigger the most questions. So, based on the above discussion, a key question is whether an old fence line can be substituted for the actual boundary when it is not on the surveyed line. If it can, how does that happen?
Passage of Time
The mere passage of time will not cause the fence to be substituted for the property description boundary. So, the fact that the fence has been there for decades doesn’t matter much by itself. However, patterns of usage of the land on each side of the fence may cause the fence to become fixed as the boundary and have the legal effect of changing the boundary set out in the deed. This is an important point surveyors and realtors often fail to properly understand.
Adverse possession. A party can acquire title to property that isn’t lawfully theirs by making an open and notorious use of the property for a specific period of time. The timeframe varies from state-to-state as do the specific elements of an adverse possession claim, but in most states the timeframe is somewhere between five and 20 years. But, for adverse possession to apply, the party trying to claim title via adverse possession must know that the property they are claiming as theirs doesn’t lawfully belong to them. If it is not known where the actual property boundary is, courts look at the intent of the party trying to claim title by adverse possession. If the property was occupied merely by mistake with no intent to claim the disputed area such that the claimant intended only to hold up to the true line (wherever it is), adverse possession is not present. Alternatively, if the occupant takes possession of the property believing the land to be his or her own up to the mistaken line and openly claims title to it (often evidenced by conduct), the possession will be considered adverse.
Note: Many adverse possession claims fail because both parties have thought that the fence actually represented the boundary and thus do not intend to claim any additional property than what they are legally entitled to claim.
Treating An Old Fence at the Boundary
Adjacent landowners may agree that an existing old fence actually constitutes the boundary in several ways.
Written agreement. Although not common, the parties may settle uncertainty about the boundary on the basis of a written agreement. In that instance, corrective deeds will be issued, and the property descriptions of the adjoining tracts will be changed to reflect the fence line. Multiple deeds may be necessary to transfer the disputed area. It’s important to hire an attorney that practices in real estate matters to get the deeds drafted and filed properly.
Memo of understanding. Another way in which the adjacent owners may settle the boundary dispute is to enter into a memorandum of understanding that designates the old fence line as the boundary. That memo can be recorded in the land records where it will bind not only the present owners of the adjacent tracts, but their successors. For the memorandum to be enforceable, the boundary must be uncertain or in dispute. The memo is technically called a “parol agreement.” It is not subject to state law governing conveyances. Even so, it’s a good practice for the memo to accurately describe the affected land and that the parties sign it. The parties should then observe the property line as described in the memo.
Practical location. Also, known as “boundary by acquiescence,” the doctrine of practical location may also be used to establish an old fence as the boundary. This situation arises when one party occupies to the fence line for the statutory timeframe (the same timeframe as that for adverse possession), knowing that the fence is not the true boundary but not knowing where the true boundary is located. If the parties know that the fence is not the true boundary, but they do know where the true boundary is located, neither a memorandum (parol agreement) nor boundary by acquiescence applies.
Equitable exchange. It may be possible in some states for a court to grant an “equitable exchange.” With an equitable exchange, one party is ordered to “trade” property on one side of the line for property on the other. However, this remedy is extraordinary, and a court will only grant such an exchange if the parties can show that the true location of the boundary will present an unusual hardship or some other circumstance.
The farmland boundary cases are voluminous. That’s unfortunate because it almost always means that neighbors are not getting along and are in a heated dispute about a boundary. Resolving such a dispute in court can be costly.
An example of a boundary dispute that involved several of the concepts discussed in today’s article is the Iowa case of Liddiard v. Mikesh, 947 N.W.2d 231 (Iowa Ct. App. 2020). In the case, the plaintiff failed to establish an existing fence as the boundary line either by adverse possession or under the boundary by acquiescence theory. The facts revealed that the plaintiff and his family had owned their property for 75 years. The property description in the original deed noted that plaintiff’s property included forty acres, containing five acres “more or less” bounded by the brink of a bluff. The “more or less” language was not included when the plaintiff’s family purchased the land. The defendant hired a surveyor to complete a survey when he purchased property next to the plaintiff’s property. The survey was recorded and included a five-acre square cut-out in the northeast corner of the plaintiff’s property. In a dispute over logging timber, the defendant prevailed in small claims court, where the small claims court found that the defendant owned the five-acres. The small claims court noted it had no jurisdiction to establish property lines. Six years later, the plaintiff sought to quiet title for approximately eight acres, including the five-acre square. The plaintiff argued that the true boundary line was the fence line, and that he was the owner of the disputed property under theories of adverse possession and boundary by acquiescence.
The trial court held that the plaintiff failed to establish either possession by adverse possession or boundary by acquiescence. On appeal, the plaintiff argued that the trial court erred in ruling that he did not establish possession under either claim. The appellate court held that the plaintiff did not prove adverse possession by establishing hostile, actual, open, exclusive and continuous possession, under a claim of right for at least ten years. The appellate court noted that both parties had used the land, therefore the plaintiff’s use was not exclusive. While the plaintiff maintained the fence, the appellate court noted that a claim of right must be established by substantial maintenance and improvement to establish adverse possession. Additionally, the appellate court noted that the plaintiff did not openly claim ownership until the logging dispute six years prior. The appellate court also held that there was no boundary by acquiescence because both parties did not acknowledge and treat the fence line as the boundary. The appellate court noted that the defendant was able to show that the fence was a courtesy fence constructed to keep livestock contained.
Fences and boundary matters can create headaches for rural landowners. It’s best to know the rules so that you can get a dispute resolved quickly and efficiently, or not get into a dispute in the first place.