Resources



Boundary Disputes

By

J. Craig Smith

Smith Hartvigsen, PLLC

175 S. Main Street, Suite 300, Salt Lake City, UT 84111

Ph: (801)413-1600  Fax: (801)413-1620

www.smithhartvigsen.com

jcsmith@smithlawonline.com

 

I.                  Boundary Issues.

 

A.                Boundary Problems

 

            Boundary issues are among the most common title problems encountered by attorneys.  Most attorneys will encounter a boundary problem at some point in their career.  In fact, it is fair to say that most attorneys will deal with a problem involving a real property boundary within the first two years of his or her practice.  These problems may vary a great deal in complexity.  In some cases, the problems will involve a fifty-year-old fence line consisting of rusty barbwire attached to gray, dilapidated tree branches stuck in the ground beside a dusty private lane.  The issues will often pit the “old-timers” (or “good old boys” depending on your point of view) against the “greedy, good-for-nothing land speculators” (or “new-comers”).  Some of the methods used to “solve” these problems include active ignorance, negotiation, litigation, and violence.  These disputes are among the most difficult to resolve.

 

            The most common boundary problems fall into a few specific categories.  They include (1) problems created by the conveyances themselves, (2) problems created by the conduct of the parties, and (3) problems created by the conduct of a third party. 

 

1.      Problems with Conveyances

 

The first category consists of problems created by the conveyances themselves.  In many cases, when real property is passed to another person the legal description found in the deed may have a defect.  These defects include legal descriptions that do not close.  The Utah Supreme Court explained:

 

Often deeds are legally described by metes and bounds, which is a description of the boundary line by length and direction.  To properly close, the metes and bounds boundary description must begin and end at the same geographical point.  To say a deed "fails to close" is to say that the legal description of the boundary of a parcel of property does not completely describe the metes and bounds properly so that the boundary completely encompasses the parcel and returns to the point of the boundary description's inception.

 

Ault v. Holden, 2002 UT 33, ¶11 n.8, 44 P.3d 781.  When a description does not close, but is sufficiently definite to convey property, a question may still arise as to where the true boundary should be located.

 

            Another boundary problem caused by a deed defect is a conflict between elements of the legal description.  For instance, a deed may describe a boundary in two different ways, such as with a metes and bounds description and by reference to a landmark, i.e., "thence South 07 54' 36" West along a ditch 680.8 feet . . . to the point of beginning."  Khalsa v. Ward, 2004 UT App. 393, ¶8 n.1, 101 P.3d 843.  If the metes and bounds description places the boundary short of the landmark, an ambiguity arises regarding the correct boundary.  Id. ¶¶2-4. 

 

2.      Problems Created by Conduct of the Parties

 

            A second category of common boundary problems are those created by the conduct of the parties.  For instance, abutting landowners may decide to place a fence between their properties but they fail to identify the correct boundary.  See, e.g., RHN Corp. v. Veibell, 2004 UT 60, ¶4, 96 P.3d 935.  Others may decide to construct a common driveway on what they think is the correct boundary line, but is not.  See, e.g., Orton v. Carter, 970 P.2d 1254, 1255 (Utah 1998).

 

3.      Problems Created by Conduct of a Third Party

 

            A third category of common boundary problems include problems created by the conduct of a third-party who has no property interest or special connection to the properties.  The most common of these problems is caused by surveys conducted early in the state’s history with less precise surveying equipment.  Diligent landowners, attempting to assure that they were constructing fence lines on correct boundary lines, often hired competent surveyors who simply had less precise equipment than surveyors have now.  Resulting boundary lines could be off by only five to ten feet, but off nonetheless.  Mason v. Loveless, 2001 UT App 145, ¶4, 24 P.3d 997.  The result could be acres and acres of abutting properties off by five to ten feet on parallel boundaries.

 

What is very clear about boundary problems is that they can be very volatile.  Many people have strong feelings about their real property and feel very protective of every square inch of what they perceive, rightly or wrongly, to be their property.  The tension can be particularly high when the boundary problem involves a portion of the lot on which his or her private residence is constructed.  Because the problem involves something very personal, people often have visceral reactions to any perceived attack.  Accordingly, resolution of boundary problems may be difficult.

 

B.                 Recognizing Problems

 

            Knowing that there are common boundary problems and that problems spring from common sources, alert property owners, real estate agents, developers, and attorneys can formulate strategies to identify likely problems and to quickly hear the warning whistle of the misplaced boundary. 

 

1.      Physical Inspection of the Property

 

The first thing a person should do is to make a physical inspection of the property.  Although this may seem like a foreign idea or an inconvenience to some professionals, it is a step that could potentially save weeks of pain and mountains of money.  The professional will be able to see important geological features, such as creeks, ditches, hills, or cliffs, old and new fence lines, survey stakes, neighbor activities, gates, wheel ruts, and other such things.

 

            Seeing the geological features of a piece of property can help in many ways.  First, if a legal description describes property by reference to landmarks or monuments, the person who has viewed the property will be able to recognize the landmark or any ambiguities in the descriptions of the landmarks.  For instance, if there is a call to a fence line, but there is an old fence line and a new fence line on the property, an alert professional will note the potential problems and ask questions of a surveyor to determine what fence the call is to.  Second, the geological features themselves can indicate problems with the conduct of the landowners that may cause the description in old deeds to vary from the actual boundaries.  For instance, if an ancient fence line exists near the boundary of the property and it appears that the abutting landowner is using all the property to the fence line, an alert professional will want to assure that the fence line is, in fact, on the boundary and to further investigate the use of the properties along the fence line.

 

2.      Review and Plot Legal Descriptions

 

            The second thing a professional will want to do to alert him or herself to a potential problem is to carefully review the legal descriptions of the deeds in the chain of title of the property.  If possible, the professional should plot the lot lines using each description.  Even a rough sketch following the legal description could identify potential problems.  Additionally, the professional should compare those deed descriptions to the legal descriptions of the properties abutting the property to assure that there is no variance in the description of the boundaries for each of the properties.  If a plat map or subdivision plat is available the professional should compare the descriptions of the boundaries in those plats to the legal descriptions of the property in the deeds.

 

3.      Survey

 

            Finally, in many instances an ALTA/ASCM survey should be obtained.  A survey will alert the professional to any problems in the boundary lines.  The surveyor may also determine that a previously surveyed area was off by a few feet causing properties in the area to have boundaries that are off by several feet.

 

C.                Strategies for Resolving Problems

 

            If there appears to be a problem with a boundary on a piece of property, the real question is how to resolve the problem.  Practically, there is only a problem if a person is affected.  For example, an unknown problem with the boundaries of a piece of property may only arise when the property is being sold—until then, the property owner is often ignorant or apathetic of the problem.  Moreover, a resolution to the problem is largely dependent on what the affected person is attempting to do.  For instance, a land developer who wishes to develop a new subdivision will have significantly different goals from a person who purchases a piece of property to construct a summer get-away cabin.  The professional’s attempts to resolve problems will largely depend on the goals of the person.  For example, in the case of a person planning to subdivide the property, if the boundary errors are located entirely within the property to be subdivided, the final subdivision plat will correct the errors by establishing new lot lines for the new lots.  The old boundary problems would become moot.

 

 

 

1.      Ignore It

 

            Of course, one way to approach a boundary problem is to simply ignore it.  Although this approach may work for a time, it can be a risky strategy.  This strategy is often employed by those who are benefited by the incorrect boundary.  For instance, a person discovers when he or she purchases a piece of property that a fence line exists on the wrong spot but it gives him or her an additional ten feet along the back of the lot.  Often, he or she will choose to do nothing about it.  As long as no improvements are made in that area of the property, he or she really has no risk.  However, if any improvements are made in that area, he or she is at risk of losing the improvement.  Ignoring the problem also does not solve any problems that may later occur when that same person attempts to sell the property. 

 

            Another approach that some take is to ignore the fact that there are people who own abutting properties.  Consequently, they simply forge ahead with their plans as if abutting landowners will not care.  For instance, people who engage in this strategy will often tear down existing fence lines and begin putting in new ones without bothering to tell anyone what they are doing.  This, of course, is a strategy fraught with problems.  Conflict is inevitable and almost certainly will end in a large attorney bill or death. 

 

2.      Negotiation

 

            Another approach is to attempt to privately negotiate the resolution of a problem.  Most often people are reasonable.  Accordingly, approaching your neighbor in a friendly way regarding the problem will often lead to a good result.  A privately negotiated resolution could include a boundary agreement, a conveyance of a license to use property, an interest in property in fee simple or easement evidenced by a deed, and/or, depending on the jurisdiction, an amendment to a subdivision plat. 

 

3.      Alternative Dispute Resolution

 

            Another approach is to attempt alternative dispute resolution techniques such as mediation.  These techniques are particularly helpful when parties wish to come to a fair resolution but need assistance from an outside source.  In an attempt to avoid the heightened cost of litigation, parties are often benefited by this method.

 

 

 

4.      Quiet Title Litigation

 

            The approach of last resort is Quiet Title litigation.  With this approach parties engage the full resources of the legal system and, at the end, will have a court order finally sorting out the rights of the parties with respect to each boundary.  Utah has a recognized procedure to determine the ownership of real property, including land and water rights.  Utah Code Ann. §78B-6-1301 through 1315 provides the framework for Quiet Title Actions in Utah.  Of particular note is the ability to quiet claims of unknown persons, see § 78B-6-1314 and §78B-6-1315.

 

D.                Introduction to Legal and Equitable Boundary and Title Doctrines Applicable to Quiet Title Actions

 

            As described in the section above, litigation is often a method used for parties to attempt to resolve boundary and title disputes.  There are numbers of legal and equitable doctrines available to a person when he or she is litigating a boundary dispute.  The most effective legal and equitable doctrine to use in a particular instance will depend on the source of the boundary problem.  For instance, if a problem with a boundary is caused by an ambiguity in the conveyancing instrument resort to doctrines created to address such problems will be most effective.  Of course, at times other doctrines unrelated to the source of the boundary problem will be useful as a secondary legal theory.  However, the best approach in attacking a boundary problem is to first ascertain the source of the boundary problem and look at the primary doctrines related to resolution of problems related to the source.  As described in the section regarding common boundary problems, boundary problems may be categorized in three broad areas:  (1) Problems with the conveyance, (2) Problems caused by conduct of the landowners, and (3) Problems caused by third-parties. 

 

E.                 Problems with Deeds and Conveyances

 

            The first category consists of problems created by the conveyances themselves.  There are several doctrines that are applicable to these types of problems.

 

1.      Deed Construction

 

            “Deed construction is a proceeding in law,” in which “the court ‘will determine the parties’ intent from the plain language of the four corners of the deed.’”  RHN Corp. v. Viebel, 2004 UT 60, ¶40, 96 P.2d 935 (quoting Ault v. Holden, 2002 UT 33, ¶38, 44 P.3d 781).  “A court may also look to extrinsic evidence if the deed is ambiguous.”  Id.

 

            In a deed construction case, a court reviews a deed and attempts to ascertain the parties’ intent from the deed and finally resolve any ambiguity that may have arisen in the deed language.  “A court is limited to interpreting only the language contained in the deed,” it does not “add new terms to a deed or alter the original language of a deed to conform to the parties’ intent.”  Id. ¶41.

            In a deed construction action, a court applies specific rules of construction to the interpretation of legal descriptions.  “Generally, ‘in interpreting legal descriptions, a call to a monument or marker takes precedence over courses and distances.’”  Clark v. Smay, 2005 UT App. 36, ¶8. 110 P.3d 140 (Mahas v. Rindlisbacher, 808 P.2d 1025, 1026 (Utah 1990)); see also Khalsa v. Ward, 2004 UT App. 393, ¶8, 101 P.3d 843.  Additionally, “where . . . land is conveyed and described with reference to a map or plat, such map or plat is regarded as incorporated in the deed.”  Coop v. George A. Lowe Co., 71 Utah 145, 263 P. 485, 487 (1927).  Map references generally control a metes and bound description.  See Iselin v. C.W. Hunter Co., 173 F.2d 388, 392 (5th Cir. 1949) (“Ordinarily, in case of inconsistency or repugnancy, a general description in a deed gives way to a description by metes and bounds, and the latter gives way to a map that is used by reference to identify the land intended to be conveyed.”); Mazzucco v. Eastman, 236 N.Y.S.2d 986, 988 (N.Y. Equity 1960) (“It is a well-established principle of law that when there is a conflict between a specific description by metes and bounds and a lot as shown upon a map by which a tract of land is conveyed, the latter provision will control.”).  Metes and bounds descriptions control general descriptions. 

 

            Thus, the order of precedence in deed construction is:

 

            1.         Calls to natural or artificial monuments

            2.         Maps incorporated in the conveying document         

            3.         Meets and bounds descriptions

            4.         General descriptions

 

It must be remembered, however, that all such rules of construction are presumptions and those presumptions may be overcome if, in the particular case, “the presumption is unreasonable.”  Clark, 2005 UT App 36, ¶¶ 9, 15 (citing Khalsa v. Ward, 2004 UT App 393, ¶8, 101 P.3d 843) (involving depiction of creek in subdivision plat that was “roughly drawn” on the map, “not called to in the subdivision plat,” and excluded “angles or measurements connecting the creek to the boundaries”).

 

2.      Deed Reformation

 

            “‘Reformation of a deed is a proceeding in equity.’”  RHN Corp. v. Veibell, 2004 UT 60, ¶35, 96 P.3d 935.

 

[Reformation of a deed] is appropriate where the terms of the written instrument are mistaken in that they do not show the true intent of the agreement between the parties.  There are two grounds for reformation of such an agreement:  mutual mistake of the parties and ignorance or mistake by one party coupled with fraud by the other party. 

 

Id. (quoting Hottinger v. Jensen, 684 P.2d 1271, 1273 (Utah 1984)).  Unlike deed construction claims, a deed reformation claim allows “a court of equity . . . to add new terms to a deed or alter the original language of a deed to conform to the parties’ intent.”  Id. ¶41.  “The controlling consideration in a reformation claim is the intent of the parties,” and the court may apply deed construction “rules of construction in a reformation claim.”  Id. ¶42.  Deed reformation could be helpful in asserting that a legal description that fails to close should be corrected so as to close the description consistent with the intentions of the parties.  Cf. Ault v. Holden, 2002 UT 33, ¶¶ 26-30, 44 P.3d 781.

 

F.                 Doctrines Rooted in the Conduct of the Landowners

 

            As discussed in Part I.A.2 above, a second category of common boundary problems includes problems created by the conduct of the abutting landowners.  For example, abutting landowners may decide that they would like to place a fence between their properties without having a proper survey done.  See, e.g., RHN Corp. v. Veibell, 2004 UT 60, ¶4, 96 P.3d 935.  Or landowners may decide to construct a common driveway on what they think is the correct boundary line.  See, e.g., Orton v. Carter, 970 P.2d 1254, 1255 (Utah 1998).  In Bahr v. Imus, 2011 UT 19, 250 P.3d 56, the Utah Supreme Court clarified the “metes and bounds” of the three boundary dispute doctrines identified in Utah case law.  The three doctrines are boundary by estoppel, boundary by acquiescence, and boundary by agreement.

 

1.      Boundary by Estoppel.

 

In Bahr, the Utah Supreme Court delineated the precise elements of boundary by estoppel.  “Boundary by estoppel is an equitable doctrine designed to prevent fraud and injustice by protecting innocent landowners who reasonably rely on representations by their neighbors regarding their shared boundary lines.”  Bahr, 2011 UT 19, at ¶22.  The elements of boundary by estoppel that a party must demonstrate are as follows:

 

(1) that the record title owner or her predecessor in interest made an affirmative misstatement that a given line was the true boundary between the neighbors’ properties,

(2) that the innocent party took affirmative action in reasonable reliance on this misstatement, and

(3) because of this affirmative action the innocent party would suffer sufficiently substantial injury that it would now be unfair or unreasonable to enforce the record title boundary. 

 

Id. at ¶33.

 

            In certain circumstances, this doctrine could be very helpful.  For instance, if a landowner, knowing that his neighbor is building a covered pool on a portion of property that is known or believed by the first owner to be on his property, and expressly informs the neighbor that the pool does not encroach on his property, the landowner will be estopped from claiming a trespass later on.  The requirement of an affirmative misstatement, “excludes the possibility of an estoppel that is premised on an act or omission falling short of an affirmative representation.”  Id. at 26.  The Court rejected a requirement that the representation be made in bad faith or with superior knowledge, stating that “the court’s attention is properly focused on the innocent party that reasonably relied upon a misstatement, not on the subjective intentions of the party that made the misstatement.”  Id. at ¶27.  For reliance to be reasonable, “parties invoking boundary by estoppel must have been ignorant of the true boundary between their property and the property of their neighbor.”  Id. at ¶29.  Finally, “an injury is of sufficient gravity to sustain an estoppel if it is such that it would render it unfair or unreasonable to enforce the record title boundary in the face of that injury.”  Id. at ¶30 (citing James H. Backman, The Law of Practical Location of Boundaries and the Need for an Adverse Possession Remedy, 1986 BYU L. Rev. 957, 968).

 

2.      Boundary by Agreement.

 

The doctrine of boundary by agreement as originally defined “required an express parol agreement with respect to a boundary.”  See Halladay v. Cluff, 685 P.2d 500, 503 (Utah 1984), overruled on other grounds, Staker v. Ainsworth, 785 P.2d 417 (Utah 1990).  “Boundary by agreement is ‘predicated on a principle of repose [and is] designed to set at rest boundaries commonly the subject of strife.’”  Bahr, 2011 UT 19, at ¶40 (further citation omitted).  This doctrine is a long-recognized “exception to the statute of frauds.”  Id. at ¶43.  The required elements of boundary by agreement are as follows:

 

            (1) an agreement between adjoining landowners,

            (2) settling a boundary that is uncertain or in dispute,

(3) a showing that injury would occur if the boundary were not upheld, and

(4) where the doctrine is being invoked against successors in interest, demarcation of a boundary line such that a reasonable party would be placed on notice that the given line was being treated as the boundary line between the properties. 

 

Id. at ¶41.

 

Under the boundary by agreement doctrine, the agreement “may be oral, but it must be explicit.”  Id. at ¶42.  Oral agreements, however, are often difficult to prove and reliance upon an oral agreement to establish boundary by agreement “may be inadvisable.”  Id. at ¶46.  The elements do not require “a showing of a passage of a long period of time.”  Id. at ¶44.  Instead, once an agreement is made, it can be used to enforce the new boundary irrespective of the length of time.  See id.  To show that a boundary location is uncertain, “[s]ubjective uncertainty is sufficient.”  Id. at ¶48.  A claim for boundary by agreement “will succeed only where a party has placed enough reliance on the agreement that it would now be unjust not to enforce it.”  Id. at ¶50. 

 

3.      Boundary by Acquiescence.

 

The other doctrine established to avoid the application of the statute of frauds prohibition against parol agreements regarding land is the doctrine of boundary by acquiescence.  What made this doctrine acceptable to avoid the statute of frauds was that, despite the absence of an express parol agreement, the doctrine “required a lengthy period of acquiescence.”  Halladay, 685 P.2d at 503.  “The doctrine of boundary by acquiescence is rooted in policy considerations of ‘avoiding litigation and promoting stability of landownership.’”  Bahr, 2011 UT 19, at ¶35 (further citation omitted).  The elements of boundary by acquiescence are as follows:

 

(1) occupation up to a visible line marked by monuments, fences, or buildings,

            (2) mutual acquiescence in the line as a boundary,

(3) for a long period of time (which has been held to be “no less than twenty years,” and

(4) by adjoining landowners. 

 

Id. at ¶¶35 and 38.

 

a.      Occupation to a Visible Line

 

            The occupation to a visible line element does not require that “a boundary must be a single uninterrupted structure.”  Orton v. Carter, 970 P.2d 1254, 1257 (Utah 1998) (citing Olsen v. Park Daughters Inv. Co., 29 Utah 2d 421, 511 P.2d 145, 147 (1973)).  The Utah Supreme Court stated that “courts should consider whether a particular ‘occupation up to a visible line’ would place a reasonable party on notice that the given line was being treated as the boundary between the properties.”  Bahr, 2011 UT 19, at ¶36.

 

b.      Mutual Acquiescence in the Line as a Boundary

 

            “[T]he party attempting to establish a particular line as the boundary between properties must establish that the parties mutually acquiesced in the line as separating the properties.”  Ault, 2002 UT 33, ¶18.  This requires that a party “shows both parties recognized and acknowledged a visible line, such as a fence or building, as the boundary of the adjacent parcels.”  Id.; accord, Mason v. Loveless, 2001 UT App 145, ¶ 19, 24 P.3d 997.

 

            Thus, “‘[w]hen the parties agree that the line to which they occupy is not the true line and agree subsequently to ascertain the true boundary, the quality of acquiescence is destroyed and no boundary is fixed by continued occupation.’”  Id. (quoting 12 Am. Jur. 2d Boundaries § 83 (1997)).  “Indeed, mere conversations between the parties evidencing either an ongoing dispute as to the property line or an unwillingness by one of the adjoining landowners to accept the line as the boundary refute any allegation that the parties have mutually acquiesced in the line as the property demarcation.”  Id. ¶20.

 

            Whether adjacent property owners have acquiesced in a particular boundary line is a fact-intensive question and “various landowner actions [may provide] evidence” of acquiescence.  Smith v. Sec. Inv. Ltd., 2009 UT App 355, ¶5 223 P.3d 451.  Factors to consider in the fact-intensive inquiry acquiescence in a line as a boundary include the following:

 

1.                  occupation up to, but never over, the boundary line

2.                  silence or the failure of a party to object to (1) a line or monuments appearing to be a boundary or (2) an adjoining landowner's use of the land up to the disputed boundary

3.                  knowledge of the true boundary

4.                  the boundary/fence's purpose and its relationship to the boundaries of adjacent properties (e.g. fence extends beyond the disputed parcels)

 

See id.at ¶¶5-7 (quotations and citations omitted).

 

c.       For a long period of time

 

            The requirement that mutual acquiescence be for a long period of time is met if there is “an unbroken period of no less than twenty years.”  Bahr, 2011 UT 19, at ¶38.  The twenty year time frame must be twenty consecutive years.  Cf. Orton v. Carter, 970 P.2d 1254, 1258 (Utah 1998) (“It is true that common ownership of adjoining properties, even for a brief season, restarts the clock for determining boundary by acquiescence.”)

 

d.      Adjoining Landowners

 

            This is a fairly straightforward element.  If the landowners did not own adjoining properties, there would unlikely be a boundary dispute.

 

e.       Objective Uncertainty

 

            In 1984, the Utah Supreme Court adopted a fifth element for a boundary by acquiescence claim:  “objective uncertainty” regarding the location of the true boundary.  See Halladay v. Cluff, 685 P.2d 500 (Utah 1984), overruled by Staker v. Ainsworth, 785 P.2d 417 (1990).  In 1990, the Utah Supreme Court abandoned the “objectively uncertainty” element of the boundary by acquiescence doctrine.  See Staker, 785 P.2d at 423.  However, in a few recent appellate court opinions, the Utah Supreme Court and the Utah Court of Appeals have created the impression that objective uncertainty may be returning—not through the front door but through the back door.  In 2002, though, the Utah Supreme Court clarified that there was no uncertainty element required in a boundary by acquiescence case.  See Ault v. Holden, 2002 UT 33, ¶19, 44 P.3d 781.

 

The Bahr Court also stated that the “objective uncertainty” element has been rejected.  See Bahr, 2011 UT 19, at ¶35 n.7.

 

f.        A Note on Timing

 

            Finally, there is a particularly interesting problem created by the boundary by acquiescence doctrine.  The courts have very clearly stated that “[o]nce adjacent landowners have acquiesced in a boundary for a long period of time, the operation of the doctrine of boundary by acquiescence is not vitiated by a subsequent discovery of the true record boundary by one of the parties.”  RHN Corp., 2004 UT 60, ¶31.  This issue was not addressed by the Bahr court. Thus, even if parties who had once acquiesced in a fence line as a boundary for a sufficient time to create a boundary, began again treating the true boundary as the boundary line, the fence-line boundary is established as the boundary regardless of the change in treatment by the parties.  See id.  One would presume, however, if the landowners treated the true boundary as the boundary for twenty years after the fence-line boundary was established, the doctrine of boundary by acquiescence would be applicable to change the boundary back to the true boundary line.

 

4.      A Note on Adverse Possession

 

            Another doctrine that may be useful in the title dispute arena is the doctrine of adverse possession. 

 

In Utah, a person without legal title is deemed “to have been under and in subordination to” the owner with legal title unless that person has adversely possessed the property.  When an occupant has entered into possession of property under a claim of title, the occupant may establish adverse possession by demonstrating that (1) the property was “occupied and claimed for the period of seven years continuously,” (2) the party, his predecessors and grantors have paid all taxes which have been levied and assessed [on the property],” and (3) the property was, in pertinent part, “usually cultivated or improved,” protected by a substantial inclosure[,] or “used . . . for the ordinary use of the occupant.”

 

Salt Lake County v. Metro West Ready Mix, Inc., 2004 UT 23, ¶22, 89 P.3d 155 (citations omitted).  In Utah, Adverse Possession is a statutory doctrine.  See Utah Code Ann. §§ 78B-2-208 through 78B-2-220.  Given the requirement that parties pay the taxes on a parcel of property for the seven year period of required occupancy, the doctrine of adverse possession has limited usefulness.  See Utah Code Ann. § 78B-2-214.

G.                Problems Created by Third Parties

 

            As described above, a third category of common boundary problems include problems created by the conduct of a third-party who has no property interest or special connection to the properties at issue.  The most common of these problems is caused by surveys conducted early in the state's history with less precise surveying equipment.  Diligent landowners, attempting to assure that they were constructing fence lines on correct boundary lines, often hired competent surveyors who simply had less precise equipment.  Resulting boundary lines could be off by only five to ten feet, but off nonetheless.  Mason v. Loveless, 2001 UT App. 145, ¶4, 24 P.3d 997.  The result could be acres and acres of abutting properties off by five to ten feet on parallel boundaries.

 

            Given the variety of problems that can be created by a third party, any one of the doctrines identified in the two categories above could be applicable to the varying situations.  For instance, in the event a surveyor incorrectly surveys property, a resort to deed correction or deed reformation might be appropriate.  If both adjoining landowners treated a fence line that they believed to be the true boundary as the boundary for more than twenty years, a boundary by acquiescence claim may also be appropriate.

 

II.               Lot-Line Adjustments Under LUDMA and Local Ordinance.

 

            Most of the discussion regarding boundaries deals with the change of the conveying documents or declarations by Courts that would effect a change in the legal description of property held by particular individuals.  What these discussions often ignore is the fact that most people live within the boundaries of local governments.  Additionally, most of those people live in subdivisions within the boundaries of those local governments.

 

            What this means is that any time there is a boundary change, individuals should investigate the Utah Land Use, Development, and Management Act (“LUDMA”) and local ordinances regarding the requirement to amend subdivision lot lines, or “lot line adjustments.”  In fact, although boundary agreements are expressly permitted by Utah law, see Utah Code Ann. § 57-1-45, it is a violation of Utah law for any person to change the boundaries of a lot line without amending the plat with the approval of the appropriate governmental entity, see Utah Code Ann. §§ 10-9a-608(5)(a), 10-9a-611(2)(a), 17-27a-608(5)(a), 17-27a-611(2)(a)

 

            Utah statute provides a mechanism for lot line adjustment for subdivision plats established in cities or counties.  Although counties and cities may enact subdivision ordinances that are distinct and vary from the Utah statutory requirements, see id. §§ 10-9a-601; 17-27a-601, the Utah code requires, at the very least, that owners submit lot line adjustment request to local “land use authority.”  Id. §§ 10-9a-608(5)(a); 17-27a-608(5)(a).  Once submitted, the land use authority must approve an adjustment if “the exchange will not result in a violation of any land use ordinance.”  Id. §§ 10-9a-608(5)(b); 17-27a-608(5)(b).

 

A.                Plat Amendment.

 

Upon petition, a land use authority may vacate or amend a plat following the public notice and meeting requirements set forth in LUDMA.  See Utah Code Ann. §§ 10-9a-608(1)(a) & 17-27a-608(1)(a).  A petition to vacate, alter, or amend a plat, part of a plat, or a street or lot in a plat may be filed by “[a] fee owner ... of land . . . in a subdivision that has been laid out and platted” pursuant to relevant law.  Id. at -608(1)(a).  A petition must include the names and addresses of all owners of record of land in the entire plat or that portion of the plat described in the petition and the signatures of all the owners who consent to the petition Id. at -608(4).  If the petition will cause the vacation or alteration of a street, the petition must also include the names and addresses of the owners of property adjacent to, or that are access exclusively by or within 300 fee of, any street, right-of-way, or easement the petitioners propose to have vacated or altered.  See id. at -609.5(1)(a). 

 

1.                  Generally.

 

Where a petition is filed, and either (i) an owner within the plat objects within 10 days of notification or (ii) “all of the owners in the subdivision have not signed the revised plat,” the land use authority must hold a duly noticed public hearing[1] within 45 days “after the day on which the petition is filed.”  Id. at -608(1)(b).

 

Following the duly noticed public hearing, if satisfied that there is good cause for the proposed vacation or amendment and no public street, right-of-way, or easement will be vacated or amended, the land use authority may vacate, or amend the plat, Utah Code Ann. §§ 10-9a-609(1) & 17-27a-609(1).  If a public street, right-of-way, or easement will be affected, the process found in § 609.5 must be followed.  The approval is shown “by signing an amended plat showing the vacation or amendment,” id. at -609(1).  The petitioner must therefore expect to foot the bill for the preparation of an amended plat showing the changes.  It is up to the land use authority, however, to “ensure that the amended plat ... is recorded in the office of the county recorder ....” Utah Code Ann. §§ 10-9a-609(2) & 17-27a-609(2). 

 

2.                  Protection of Energy Devices.

 

            Interestingly, LUDMA permits a land use authority to refuse to approve or renew any plat or subdivision, or any sort of dedication, if it contains any sort of restriction or prohibition against “reasonably sited and designed solar collectors, clotheslines, or other energy devices based on renewable resources.”  Utah Code Ann. §§ 10-9a-610 & 17-27a-610.[2]

 

B.                 Vacating a Street or Alley.

 

            If a petition to vacate part or all of any public street, right-of-way, or easement contemplates the vacation or is received and meets the requirements of Utah Code Ann. §§ 10-9a-609.5(1) & 17-27a-609.5(1), the land use authority must, first, provide notice as required by Utah Code Ann. §§ 10-9a-208 & 17-27a-208 (see fn.1, above).   That done, a public hearing is held to determine whether “good cause exists for the vacation” and “the public interest or any person will be materially injured by the proposed vacation.” Id. at -609.5(2).  If those conditions are met, the legislative body may by ordinance vacate some or all of a public street, right-of-way, or easement.  Id. at -609.5(3).  The legislative body shall ensure that the plat or ordinance is recorded in the county recorder’s office.  See id. at § -609.5(4).   

 

Codifying relevant case law, LUDMA provides that

 

[t]he action of the legislative body vacating some or all of a street, right-of-way, or easement that has been dedicated to public use: (a) operates to the extent to which it is vacated, upon the effective date of the recorded plat, as a revocation of the acceptance thereof and the relinquishment of the [municipality’s or county’s] fee in the vacated street, right-of-way, or easement; and (b) may not be construed to impair (i) any right-of-way or easement of any lot owner or (ii) the franchise rights of any public utility.

 

Id. at §§ 10-9a-609.5(5) & 17-27a-609.5(5). 

 

C.                Exceptions to Plat Amendment Requirements.

 

            An exception may be made to the established vacation/alteration/amendment process, and the public hearing altered to a simple public meeting, if the local ordinance does not provide otherwise and a petition seeks only “to join two or more of the petitioner fee owner’s contiguous lots.”  Id. at -608(2)(a)(i).  Exceptions may also be allowed if the petition will subdivide one or more of the petitioning fee owner’s lots if no violation of a land use ordinance or development condition will result, if the petition adjusts the lot lines of adjoining lots or parcels if all fee owners sign the petition, if the petition adjusts an internal lot restriction imposed by the local political subdivision, or if the petition alters the plat in a manner that does not change existing boundaries that are not owned by the petitioner, or designated as a common area.  See id. at § -608(2)(a)(i), (ii), (iii), and (iv)For any of these exceptions, notice must also be given pursuant to local ordinance.  Id. at -608(2)(a)(i) and (2)(b).

 

D.                Exchanges of Title to Portions of Adjacent Parcels.

 

            Additionally, the owners of adjacent parcels, “described by either a metes and bounds description or by a recorded plat may exchange title to portions of those parcels if the exchange of title is approved by the land use authority.”  Utah Code Ann. §§ 10-9a-608(5)(a) & 17-27a-608(5)(a).  The land use authority must approve such an exchange if it “will not result in a violation of any [local] land use ordinance.” Id. at -608(5)(b).

 

            If such an exchange is approved, notice of the approval, along with a conveyance of title must be recorded with the county recorder.  Id. at -608(5)(c)(i) & (ii).[3]  The notice of approval must (A) “[be] executed by each owner included in the exchange and by the land use authority,” (B) contain an acknowledgement for each party executing the notice in accordance with Title 57, Chapter 2a “Recognition of Acknowledgements Act,” and (C) “recite[] the descriptions of both the original parcels and the parcels created by the exchange of title.”

 

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