NOTE: This summary is very simplified, and is provided for informational purposes. Any questions on this topic should be directed to The Office of the Property Rights Ombudsman.
On occasion, the exact location of a property’s boundary may be disputed by the owners. Over time, inaccurate measurements and forgotton understandings can lead to confusion over where a boundary should be. Ideally, such disputes should be avoided altogether through accurate measurements and professional property surveys. However, the Utah Supreme Court has developed very clear rules to help resolve boundary disputes. These rules are explained in Bahr v. Imus, 2011 UT 19:
Boundary By Acquiesence
The Boundary by Acquiesence theory provides that a long-standing marker that indicates where property owners understand a boundary to be located becomes the actual boundary, even if a survey places the boundary elsewhere. Boundary by Acquiescence is shown by proving the following:
(1) Occupation of land up to a visible line marked by monuments, fences, or buildings;
(2) Mutual acquiescence or acceptance in the line as a boundary;
(3) For a long period of time (more than 20 years);
(4) By adjoining land owners.
It is not necessary that the owners formally agree that the monument marks the property boundary, acceptace or acquiesence is sufficient. This can be shown by the actions of the property owners regarding the location of the boundary.
The disputed property must be actually occupied or used. Merely claiming ownership is not sufficient.
Dean v. Park, 2012 UT App 349–Discusses and clarifies the terms ”mutual acquiescence” and “occupation of property.”
Essential Botanical Farms, LC v. Kay, 2011 UT 71–Boundary by Acquiescence elements must be proven by “clear and convincing evidence.”
Q-2, LLC v. Hughes, 2014 UT App 19–Title to disputed property passes when the elements of boundary by acquiescence are established, even if the dispute is not resolved by agreement or a court action.
Boundary by Agreement
Boundary by Agreement honors verbal or unrecorded agreements made to settle a property boundary. In order to claim a boundary by agreement, the following elements must be shown:
(1) An agreement between adjoining land owners;
(2) Settling a boundary line that is uncertain or in dispute;
(3) A showing that injury would occur if the agreement were not upheld.
In order to bind successor owners to the same agreement, it must be shown that the agreed-upon boundary was marked or clearly identified so that a purchaser would be on notice of the boundary’s location.
Boundary by Estoppel
The policy underlying the estoppel theory is to prevent injustice and injury to property owners who rely upon representations regarding property lines. A property owner may claim a boundary by estoppel by proving the following:
(1) An affirmative admission, representation, or act regarding placement of the boundary which is inconsistent with the claim afterward asserted;
(2) Action by the other property owner in reasonable reliance on that representation;
(3) Injury to the other property owner which would result if the first party contradicted the representation.
The representation regarding the placement of the boundary must be affirmative—an implied or inferred representation is not sufficient.