Boundary Agreement Defined
A boundary agreement, pursuant to the common law of Massachusetts, is a written agreement between abutting landowners that fixes a boundary line between their respective parcels of land. Absent an agreement, unsettled boundary lines typically can be found by determining where monuments locating the boundary lines in the past were placed, or by creating a new "by course" to locate the "true" boundary line between properties.
However, when boundary disputes become contentious, landowners may seek to "settle" the boundary dispute by agreeing to a location for the boundary line that is not based on a "true" linear distance between the points depicted on a deed. So, for example, if two adjacent landowners both believe that the linear boundary between them runs to a different spot on the ground, they both might agree to move the boundary over a matter of feet (or yards) so that the boundary line is no longer a straight "by course" line, but is instead jagged.
The general purpose of a boundary agreement is to amicably resolve property line disputes and boundaries that are not clear from the record. Particularly in New England, where early deeds were not based on surveys, but instead were based on physical objects or "intangible monuments" such as "landmark trees," the physical location of a boundary line is often not known with clarity .
Common examples of where a boundary agreement may be reached include locations where one neighbor is encroaching on another’s property line with a structure, or where two neighbors have a fence that has been erected many years ago for boundary-marking purposes, but has come to be viewed as the actual boundary line. In these latter cases, the owners may agree that the fence will remain the boundary line, and will be recognized as the boundary line, so long as the fences remain standing.
Agreements regarding boundary lines between adjacent landowners can and do often lead to litigation. In just the last two years, a neighbor to a residential condo development in South Boston brought suit seeking a declaratory judgment for a "first deed in right" to use part of the land as a path over which to travel to his own unit on the land adjacent to the Units, which he claimed was provided through the original deed granting the easement to the developer. The developer also claimed that the neighbor was improperly trespassing over area adjacent to Unit 5’s garage space, and sought an injunction to proximately from the other units, and compensation for damages to the Association.
Essential Legal Considerations of a Boundary Agreement
One of the fundamental elements required for a valid boundary agreement is the mutual consent of the parties. After a lengthy period of peaceful occupation, if one property owner no longer wants to recognize the boundary as before, the property owner can petition the court to have a new boundary declared. Boundaries may be agreed to orally or in writing, by a quiet title action or some other judicial process. The fact that an encroachment exists and there is a dispute over the correct location of the boundary line may be enough to demonstrate an implied agreement to maintain the existing, and perhaps longstanding, boundary line. A boundary agreement may also be incorporated into a larger legal document such as a grant deed or easement.
The Boundary Line Agreement Act in California requires that the deponent sign a written declaration stating that he knows the facts contained therein to be true and that the advocate signed the declaration, being his act and deed. Notwithstanding the necessity of other requisite formalities, California courts frequently find orally-based boundary agreements are enforceable. Courts in other jurisdictions using common law also permit oral boundary agreements. Although not legislatively enacted, the statutory law in California and the common law in other jurisdictions often rely on equitable estoppel as the primary basis for enforcing boundary agreements. The doctrines of waiver and quasi-estoppel are also used to some extent.
According to Civil Code 1104 a boundary agreement usually contains the following statements:
(a) A written agreement is signed and filed with the county recorder.
(b) A description of the line should be provided using metes and bounds (courses and distances). California requires the use of natural monuments, but landmark trees, utility poles and roads are acceptable.
(c) The names of both parties are properly stated.
(d) Signatures of both owners and notarization are required when signing the boundary agreement.
The requirements emphasize the importance of a description of the location of the boundary that is testimony by the neighbors for years as to the true boundary.
Boundary Agreement or Boundary Dispute Question?
A boundary agreement is simply a contract between neighboring landowners that resolves uncertainties or disputes regarding the location of their common boundary line. The agreement typically describes the fixed position of a boundary line that is different from what might be depicted on publicly-recorded maps, such as tax maps or subdivision surveys that are not accurate due to late changes in a subdivision’s design or a failure to clear and mark the boundary line between the properties, or because the neighbor failed to respect a landscaping feature, fence or structure that encroaches over the property line. No matter the reason for the uncertainty or dispute, the agreement settles the ambiguity and prevents disputes from arising in the future.
On the contrary, a boundary dispute is often acrimonious and adversarial. Boundary disputes almost always involve uncertainty over the "correct" boundary line location and a dispute over the application of evidentiary rules that dictate the legal consequences of the neighbors’ conduct with respect to the disputed boundary. The existence of a boundary line determines whether a party is trespassing, responsible for a fence or wall that is defective or encroaching, entitled to adverse possession or estoppel by acquiescence, or entitled to an easement, prescriptive easement or eminent domain compensation. The law that governs these issues can vary by jurisdiction. Sometimes, owners confused over their boundary line locations may ask a court to appoint a surveyor to survey and establish the boundary line location.
A boundary agreement will resolve all the uncertainties or disputes listed above. Moreover, a boundary agreement typically contains an easement, grant or quitclaim deed by which the objecting neighbor transfers its property interest in the boundary line area (or the entire disputed area) to its neighbor in exchange for the adjacently-owned land, for a price that is nominal, or nothing at all, if the parties are neighbors with a long-standing informal use for the boundary line area.
No offense to our litigation practice, but a primary goal of entering into a boundary agreement is to avoid the expense and uncertainty of litigation that a dispute usually entails.
Creating a Boundary Agreement
Negotiating the terms of a boundary agreement is the first step of the process.
This negotiation should be done verbally, with written memorialization of the ultimate agreement. If negotiations are successful, the boundary agreement should be drafted in writing, whether it is a deed or another document such as a memorandum. The agreement should describe the agreed upon location of the boundary line. With regard to the boundary line, the location should be described as accurately as possible. It may be sufficient to reference a survey plan, but a survey plan should be prepared and recorded establishing the location of the boundary line. If you are not a lawyer, do not sign a deed or other document without having the document reviewed by a lawyer familiar with boundary law and land use. While the conveying of easements, negative easements and certain licenses do not need to be recorded, the same is not true with a license to enter to mow the grass. These deeds must be recorded to be enforceable. Consult your lawyer about whether a license, easement, negative easement or another instrument should be used in your situation and seek advice on how best to record the deed to protect your rights. If a deed is required to legally enforce the boundary agreement, your conveyance should be complete. You may also require the consent of a lien holder under your mortgage. You will need to execute the deed and then have it acknowledged by a notary public. The deed should be recorded in the real estate records in the county where the land is located. Recording the boundary agreement will establish your rights in a way that is enforceable against your neighbor and others. Seek legal advice before and during the negotiation of a boundary agreement.
Legal Validity of Boundary Agreements
Enforceability of Boundary Agreements
The enforceability of a boundary agreement in court is a question that arises quite often. It is true that the documentation surrounding a boundary agreement is important in determining whether a boundary agreement is enforceable. There are multiple factors that affect the enforceability of boundary agreements, such as:
Accordingly, to help demonstrate and avoid any confusion as to the intentions of the parties regarding the boundary line or fence, it is advisable that the involved parties jointly prepare and sign a written document identifying the disputed boundary line or fence. Although writing is not a prerequisite for establishing a boundary by acquiescence, it assists in avoiding confusion and establishing certainty in the event a dispute arises . This is true even if the boundary agreement is later dictated by a newly discovered legal title. If the parties decide to write down their boundary agreement, they should strongly consider obtaining the signatures of two witnesses.
If the property involved is part of an existing covenant or on a building site affecting a zoning ordinance, the committed agencies may be required to approve the agreement before it can be enforced. In some cases, governmental agencies may be required, as the owner of the boundary line or fence, to remove any obstruction that interferes with the use of a public way, or to allow the public necessary access to private property.
Boundary Agreement Case Studies
Boundary disputes can often be resolved through mutually beneficial agreements between property owners. A few real-life examples can offer insight into the potential of boundary agreements to promote peaceful and cooperative relations among neighbours.
Ten years ago, two cottage owners on Bass Lake near Orillia asked their neighbour to remove intermittently rising, shallow water on the sand between the three cottages. Facing potential litigation, litigation costs, and a loss of enjoyment, they chose instead to negotiate a boundary agreement. The agreement stated that there was not a fixed water-line but that a seasonal water mark would be monitored and determined by the owners together. Because the crown had surveyed the land and registered plans decades before, new boundaries were to be established well inside the existing titles. The result ensured that the cost of seasonal discrepancies was evenly shared and the water could still be enjoyed by all three parties. The neighbours were very happy with this solution, quickly recording it on title.
Five years ago, two first-time, side-by-side homeowners in a large mobile home park were enjoying their new properties when another resident informed them that the backyard fences they installed were more than 1.5 feet past their property lines. The opportunity for lengthy, costly litigation, brimming with uncertainty, loomed in the backyard. Relying on the skills of their lawyer, the neighbours entered into the boundary agreement of choice: a nuisance fence agreement. As there were three fences between the two properties, the shift in ownership is that two fences are now jointly owned and cannot be removed without the consent of the other party. The boundaries have been confirmed with the purchase of new pins because the neighbours were so pleased with the process that they agreed to share the unanticipated costs. As the summer sun shined over the city of Calgary the neighbours smiled and enjoyed a refreshing beverage on the patio they had so desperately tried to protect.
A five-year dispute between two new neighbours in Nova Scotia over a remote rodent repelling fence and broken concrete archway was resolved last year when the brothers-in-law agreed that although the fence was installed on the wrong property about 15 years earlier, it had become the newfound boundary. Furthermore, the fence really was performing its duty and keeping the rodents out. A 20-page agreement full of specifications and logistical details was prepared for the estate of the brother who passed away two years earlier (this is not an uncommon boundary agreement effort and does generally require time and a coordinated effort). The added benefit for the surviving agreement signatory was that he found solace in closure with a family member.
An interstate agreement was reached between two cattle ranching neighbours when it was discovered that their boundary was off by several hundred feet because of erosion. After discussing the matter for years, once the parties obtained surveyors for each side of the border, they reached an agreement to remove livestock on a portion of what is now jointly-owned sloping grassland so it could regenerate. It was agreed that species that had taken over much of the rest of the land would be eradicated with appropriate chemical methods and that both would be responsible for ongoing monitoring and management of the area to support the initiative of their neighbour.
Common Issues of Boundary Agreements
Like any contract, a boundary agreement can become the source of a dispute between the parties or others with an interest in the affected properties. In some cases, parties sign an agreement without fully understanding its terms, only to be surprised by the consequences. Below are a few of the common pitfalls to avoid and some suggestions on how to approach drafting and executing boundary agreements.
Failing to identify all affected parties. Perhaps the most problematic issue with boundary agreements is when a landowner fails to identify and obtain the agreement of all parties with an interest in the affected property. This could include, for example, spouses who own the subject property by the "whole estate" (most commonly in a "tenancy by the entirety" when they marry) or family members who have a prior claim to the property. A Uniform Commercial Code lienholder may also have a security interest in the land. Even a "squatter" could in the right circumstances hold an interest in the property. Getting an agreement signed by all parties with an interest in the land, including all prior owners , will prevent others from being able to argue that the agreement is not enforceable as to them or as to their interest in the land.
Failing to correctly identify the boundary line. Boundary agreements are meant to make clear where the parties agree to the location of the boundary line. Errors in this regard can result in significant problems and expenses to both parties. It is therefore important to take time and effort to correctly identify the correct location of the boundary line so as to reflect the parties’ true intentions, and to avoid non-obvious errors, such as those involving boundary lines that change over time due to erosion (accretion or avulsion of land). Hence, it is critical to clearly set out a description of the boundary line in either words or a drawing attached to the agreement.
Failing to allow for future changes to the boundary line. Just as a boundary line can change over time due to erosion, a boundary line can also change due to various other causes. It is therefore important, when drafting a boundary agreement, to allow for future changes to the boundary. That may mean stating in the boundary agreement that a structure, such as a fence, should be treated as the boundary line, or that a fence should be treated as moving in accordance with changes to the land.