Can We Agree to Disagree?
The scene: Two adjoining landowners on good terms with each other decide that the boundary line between them just really isn’t in a convenient location.
They decide to agree between themselves to “move the boundary line” to a new location more advantageous to both landowners.
On face level, this appears to be a fine example of reasonable individuals cooperating to improve the utility of the properties in question. However, this testament to good intentions, whether executed purely as a parol (verbal) agreement or drafted with the aid of a surveyor, can become a minefield of conflicting issues to trap the unwary.
“Clark on Surveying and Boundaries” summarizes some of the inherent problems with boundary line agreements:
To the layman there would appear to be no reason why two individuals who own adjoining properties could not agree between themselves. … There are, however, three legal obstacles to be overcome before the law will recognize such informal agreements on boundaries. … The first difficulty arises out of the English Statute of Frauds; adopted in 1660. … This statute has been adopted by all of the states. The second obstacle concerns the rights of innocent third parties, who would be dealing with either of the agreeing landowners, without knowledge of their secret agreement. The third problem is the legal doctrine of “Constructive Notice.” All states have methods of recording or registering deeds or probating wills. Other parties are legally entitled to view the recorded documents to ascertain their rights and these records are binding upon everyone …1
In addition to the issues mentioned above, it is entirely too easy for the surveyor to mistake the status of the “landowners” in situations of this type. There may be multiple individuals who hold title to each tract or fractional interests in the land. Depending on jurisdiction, the individuals’ status as tenants in common, co-tenants or spouses with rights of survivorship can make a binding agreement much more complicated. It is interesting to note that in the various disputes reviewed for this article, little evidence was discussed indicating that the rights of spouses or co-tenants to the lands in question were considered by the parties to the line agreements.
Conflict with the Statute of FraudsIt is well-established in most jurisdictions that a parol agreement attempting to “move” an existing boundary line (where that boundary line is not to some degree in doubt or dispute) is in violation of the statute of frauds. Individual state jurisdictions vary somewhat with regard to the level of uncertainty that must exist before an agreement becomes valid, but in all cases reviewed, the conflict with this statute was by far the most common issue raised when line agreements were later challenged in court.
The state of California appears to allow little latitude with regard to this question, as stated in Silvarer v. Hansen:
In all cases where the true boundary is known to the proprietors of coterminous lands, and for mutual convenience or other sufficient reasons, they make a verbal agreement changing the location of such boundary, the statute of frauds inflexibly applies and avoids such agreement…2
North Carolina (quoting both “American Jurisprudence” and “American Law Reports”) reinforces the principle that some level of uncertainty is required to validate a parol agreement and further complicates the issue by introducing elements of possession or acquiescence.
A multitude of jurisdictions hold that an uncertain and disputed boundary line may, under certain circumstances, be fixed permanently by parol agreement, if accompanied by sufficient acquiescence and possession, but where there is no uncertainty as to the boundary line, a parol agreement fixing a boundary line in disregard of those fixed by the deeds is void under the Statute of Frauds, as it amounts to a conveyance of land by parol…3
The legal system has developed a rationale justifying the apparent conflict with the statute of frauds in certain circumstances.
The reason that a parol agreement regarding an unascertained, uncertain or disputed boundary falls out of the Statute of Frauds is that no estate is created [and] ... the coterminous proprietors hold up to it by virtue of their title deeds, and not by virtue of a parol transfer of title…4
Yet another complication arises when, despite some uncertainty as to the true location of the boundary line in question, the landowners request the surveyor to mark the agreed-upon line in a location that is at odds with any possible interpretation of the description creating said line. It is generally held that this attempt to move the line by agreement beyond any legitimate interpretation of the muniments of title would then constitute a transfer of title and become subject to the statute of frauds.
Legitimized by CircumstanceThe boundary line agreement may be a legitimate option at times, but the various courts seem to prefer a sufficiency of evidence of possession to the agreed upon line so that the “agreement” is also strengthened by visible possession or apparent acquiescence as mentioned in the North Carolina case Andrews v. Andrews (cited previously). Although the legal basis for boundary line agreements is generally found in common law principles rather than in statutory law, it also seems beneficial to a claim of this type if a sufficiency of time has elapsed so as to satisfy the individual state statutory requirements for adverse possession.5 A recent Maine opinion discusses conditions where agreements may be rendered acceptable by subsequent use of the lands adjoining the line:
A contract between owners of adjoining tracts of land fixing a dividing boundary is within the Statute of Frauds but if the location of the boundary was honestly disputed the contract becomes enforceable notwithstanding the Statute when the agreed boundary has been marked or has been recognized in the subsequent use of the tracts …6 The degree of uncertainty and the difficulty with which the true boundary might be correctly determined both play an important role in determining the validity of an agreement. Mere ignorance of the true location of the line on the part of the landowners may not be considered a sufficient level of uncertainty.
The owner of property must be presumed to have been familiar with the terms of the instrument which constituted his muniment of title. If he did not actually know the extent of his property and had the means of knowledge within reach, he would not be heard to say that a fence was located upon an accepted division line. … Where there is an acquiescence in a wrong boundary, when the true boundary may be ascertained by the deed, it is treated both in law and equity as a mistake, and neither party is estopped from claiming to the true line. The boundary is considered definite and certain when by survey it can be made certain from the deed …7
New Hampshire presents a unique situation in its statutory requirement for boundary line agreements. RSA 472 requires the agreement be put in writing and only allows such agreement when the line “cannot be determined by the monuments and boundaries named in any of said deeds.” RSA 472.4 also requires that the agreed-upon line be surveyed and appropriate monuments placed.
Estoppel is another legal principle that may be invoked by the courts in order to validate an otherwise questionable agreement. The case of Smith v. Digh (North Carolina) appears to be an issue only of boundary line agreement, but upon careful reading it also contains elements of estoppel. This case is perhaps of particular interest to our profession because it appears that the surveyor mentioned in this analysis made every effort to make this agreement binding, even going so far as to have the map notarized and recorded in the county courthouse. It is also uncontested in this case that some level of doubt existed as to the true location of the line. The opinion notes that:
Her testimony tended to show the following: A controversy arose in June 1968, or earlier, between the parties as to the true location of the boundary line between their properties. A survey and a map were made, and on 22 June 1968 plaintiff signed an agreement on the map which read: “North Carolina Burke County We, Ralph F. Digh and Mrs. Beulah Smith, do affirm that the ‘agreed line’ as noted on this map is in accordance with our agreement and that the property line between us shall hereafter be this ‘agreed line.’ I, Ralph F. Digh, will not claim any property south of this line; and, I, Mrs. Beulah Smith, will not claim any property north of this line.” This agreement was also signed by defendant Ralph F. Digh on 22 June 1968.8
Despite being one of the more notable examples found of a surveyor attempting to responsibly resolve the issue of a disputed line, the court only decided in favor of the line depicted on the survey based on the principle of estoppel, rather than actually confirming a valid boundary line agreement, stating “… that the agreement of the parties constituted an estoppel and a bar to the maintenance of the proceeding. The landowner did not deny entering into the agreement …”8
It would appear in retrospect that, in the situation described above, the more prudent solution from the surveyor’s perspective would have been to suggest the landowners retain an attorney to prepare quit-claim deeds utilizing the survey just completed.
Words of Conveyance MatterIt is well for the surveyor to remember the difference between the “deed” and the “description” when dealing with situations where the courts might rule that actual title transfer had been attempted. While the surveyor’s plat and written metes and bounds description of the proposed agreement line may be more than adequate as a description, it does not necessarily constitute a valid deed.
Statutes vary from state to state, but most require, at a minimum: (1) sufficiency of description; (2) operative words of conveyance; (3) a competent grantor and grantee; (4) proper execution; (5) delivery; and (6) acceptance. Observe that in Smith v. Digh it seems likely the court was dubious that all legal requirements for a valid deed had been met and was therefore forced to rely on estoppel as the only legitimate means to lend validity to the agreement.
Constructive NoticeAll states have adopted some form of recording requirement in order to ensure public access to deeds and other documents that convey title to real property. This concept becomes particularly important when easements or other hereditaments exist in the vicinity of the proposed boundary line agreement. In one recent case, a parol boundary line agreement between parties was a collateral issue in a jury trial regarding the status of a previously recorded easement adjacent to the boundary line in question. In another case, the existence of a public access apparently created in 1896 was called into question due--in part--to questions regarding the method in which the documentation describing the easement had been recorded and indexed.
According to the Virginia courts,
The main purpose of recordation statutes is to give constructive notice to purchasers and encumbrancers who acquire or seek to acquire some interest or right in property … [W]here a party purchases an estate which is subject to the right of another, and that right is shown by the chain of title papers, the purchaser is charged with notice of all that the title paper or papers to which they refer may disclose upon complete examination ...9
Thus, the surveyor who considers facilitating a boundary line agreement between clients should also give thought to the method by which the agreement will be linked to the chain of title of all affected lands.
Common MistakesIf the situation is one in which a written agreement is called for, the surveyor should make sure to perpetuate the agreement in an appropriate written format.
It would be safer for the client to employ a surveyor and a real estate attorney working together in order to effect a legal transfer of title according to the wishes of the landowners. Unfortunately, problems all too often arise from one of two mistaken ideas on the part of the landowners: that (a) the surveyor marking the proposed line on the ground is better qualified to perpetuate a title transfer than the attorney; or that (b) removing the attorney from the process will save money and time. In the long term, both assumptions often prove incorrect and may come back to haunt the client.
Remember when considering boundary line agreements that
… land cannot be conveyed by the device of moving fences or changing the marks or monuments which define its limits. If an agreement (having for its real object the transfer of the land, but relating by its terms solely to the boundary line and made with knowledge that the true line is elsewhere than at the place fixed), is oral, it would be void, being an attempt to transfer land without writing. If it is in writing it would be ineffectual to pass title, for it would lack the apt words of conveyance that are necessary to accomplish a transfer of real property …10
References1. “Clark on Surveying and Boundaries,” Lane J. Bouman and Walter Robillard (7th ed.), 1997, Lexis Law Publishing.
2. William Silvarer v. Lawrence Hansen, et al., No. 11673, Supreme Court of California, 77 Cal. 579, 20 p. 136, 1888.
3. T. Curtis Andrews and wife, Katherine Andrews v. T. B. Andrews, No. 454, Supreme Court Of North Carolina, 252 N.C. 97, 113 S.E.2d 47, 1960.
4. Mary A. Steinherz v. Richard D. Wilson, Supreme Court of Maine, Decided: January 28, 1998, Decision: 1998 ME 22.
5. Kristopher Kline, Unmistakable Marks, “Knowledge in the face of adversity, part 1,” POB August 2010.
6. Steinherz v. Wilson, 1998.
7. Eunice Williams, v. Alvin S. Barnett, 135 Cal. App. 2d 607, 287 p.2d 789, 1955.
8. Beulah Hawkins Smith v. Ralph Fonzo Digh, No. 7025SC486 Court Of Appeals Of North Carolina 9 N.C. App. 678; 177 S.E.2d 321; 1970 N.C. App.
9. Frederick J. Shaheen v. County Of Mathews, Record No. 021350, April 17, 2003 (Circuit Court Matthews Co.,Virginia).
10. Syra E. Lewis v. Johnson Ogram, L. A. No. 1647 149 Cal. 505, 87 p. 60, July 30, 1906.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.