GOOD FENCES (AND BOUNDARY LINE AGREEMENTS) MAKE GOOD NEIGHBORS

by: Brian Haws

             Good fences make good neighbors, or so the saying goes.  When I was younger my father would always counter this saying by pointing out that a good person doesn’t need a physical barrier or a wall to know their limits and that honesty and common courtesy should be enough to remove any need for a wall between neighbors.  While this is a sentiment I have come to believe in strongly, in the practice of law I have seen too many cases where, lamentably, a party lacks one or more of these traits and costly litigation over boundaries has been the result.

Unfortunately in Utah, there are abundant opportunities for disputes regarding boundaries to arise.  When the pioneers came into the Utah, one of the first things they tried to do was lay out planned communities and they set about surveying the property throughout the region.  While their foresight in laying out planned blocks, quadrants, and sections, which would become our towns, cities, and counties, was years ahead of other areas in the West, their means of taking accurate measurements was not as advanced and errors did occur with some frequency.  As property has passed from owner to owner over the years, many of the mistakes in measurements and surveys have been passed along as well.  However with new technologies such as laser sites and GPS, those mistakes are coming to light more often.  As new neighbors buy property and move in they may be inclined to demand the right to receive all the property described in their deeds.

When a boundary line dispute does arise, one of the first things a court considers is how the previous owners have historically treated the boundary and then applies a legal doctrine that is known as Boundary by Acquiescence.  In Utah, the courts have set out four elements that must be established to equitably modify the written legal description contained in a deed.  First, the property must be occupied up to a visible line marked by fences, buildings, or other monuments such as trees, creeks or streams.  Second, the boundary must be between adjoining landowners.  Third, the landowners must mutual acquiesce in the line as a boundary. (It is important to note that the property owners do not have to expressly agree that the line is a boundary, but simply have to acquiesce by doing nothing to change how the other party treats the boundary).  Finally, the boundary must have been in use for a period of at least 20 years.  If the period is anything less than twenty years the doctrine does not apply and more than likely the court will enforce the legal description outlined in the deed. This is true even if the boundary was accepted for 18 or 19 years before the new property owner came into the picture.  While the courts have set out methods and doctrines for resolving boundary disputes, these are expensive and time consuming and as in any litigation are anything but guaranteed as you must find evidence of boundary line for the full 20 years and then convince the court of our position.

However, property owners who currently have good relationships with their neighbors can avoid taking this difficult road in the future by taking a few simple steps now.  First, review the legal description from your deed with that of your neighbors, just to see if there are any problems.  Second, if there is a discrepancy and the boundaries overlap or you find that the fence, garden, or driveway are off by few feet, sign a simply boundary line agreement with your neighbors that clarifies where you agree the boundaries are or should be.  Signing such an agreement with a neighbor who is friendly, or who also wants to void problems in the future, will eliminate the prospect of costly litigation down the road should a less-than-friendly neighbor move in next door.  Finally, make sure this agreement is notarized and recorded in the office of the County Recorder so that it puts all future property owners on notice as to where the boundary line now sits.

Some may question “why worry about it if I have good relations with my neighbors if it is not an issue now?”  But it only takes a moment of reflection to realize that there is no guarantee that the good people who live next to you now will always be there, and you have no idea who might move in.  Good fences and boundary line agreements may not make your neighbor perfect, but they can protect you from expenses and difficulties in the future should someone move in who is a little less than perfect than your current neighbor.