Boundary by Acquiescence: When does Title Pass?

Recently, the Utah Court of Appeals issued its opinion in Q-2, LLC v. Hughes., 2014 UT App 19.  That opinion significantly impacts landowner’s expectations with regard to the establishment and maintenance of boundaries.  The opinion highlights the need to acertain boundaries before purchasing land and maintaning them aftewards.

A complicated set of facts in this case created the rare circumstances for competing claims under boundary by acquiescence and adverse possession theories.  In 1998, the Hugheses purchased a lot with a deteriorated fence that had separated their lot from neighboring lots from approximately 1927 to 1971.  The fence, however, had been built on the Hugheses’ side of the recorded boundary line.  Therefore, after purchasing the lot, the Hugheses occupied the land up to the recorded boundary line.  

In 2001, a neighbor brought a quiet title claim against the Hugheses, claiming title up to the boundary established by the deteriorated fence under boundary by acquiescence doctrines.  The court in that case quieted title to the property in the neighbor up to the location of the deteriorated fence. 

In 2008, Q-2, LLC, another neighbor, also brought a quiet title claim against the Hugheses relying on the same facts and law as the prior case.  One would have expected the outcome to be a simple rubber stamp of the prior case.  The Hugheses, however, brought a counterclaim to have the title quieted in them under adverse possession doctrines.

The elements of a claim for adverse possession are:
    1) continuous adverse occupation of the land;
    2) with payment of all taxes thereon;
    3) for seven years.
Utah Code Ann. §§ 78B-12-214 through 216. 

The elements of a claim for boundary by acquiescence are:
    1) occupation up to a visible line marked definitely by some monument;
    2) acquiescence in that line as a boundary;
        (a) by adjoining land owners;
        (b) for a period of at least 20 years.
See Jacobs v. Hafen, 917 P.2d 1078, 1080 (Utah 1996).

The Hugheses’ contention was that although 7 years had not passed since the prior case was fully adjudicated, the title had passed to Q-2, LLC’s predecessors in interest years earlier when all the elements for boundary by acquiescence were satisfied.  Accordingly, the Hugheses reasoned that their possession was adverse since 1998 when they purchased their lot.

In turn, Q-2, LLC argued that title to the property does not pass under boundary by
acquiescence theories until a court has adjudicated a claim to quiet title to the land.  Accordingly, Q-2, LLC reasoned that the Hugheses’ possession could not have been adverse when the record title to the land as between the Hugheses and Q-2, LLC was in the Hugheses. 

The trial court agreed with Q-2, LLC, but the Court of Appeals, reversed the trial court and ruled that title to the property passed at the moment all the elements of boundary by acquiescence were satisfied regardless of whether a claim to quiet title has been adjudicated.

By in large, the assumption has been that title to land is held by the one the recorded documents indicate has title until a court with competent jurisdiction rules otherwise.  The opinion in Q-2, LLC v. Hughes, undermines that assumption.  Ascertaining and maintaining boundaries has always been a significant concern.  This opinion, however, should serve as a wakeup call for anyone dealing in land, including owners, sellers,
buyers and title insurers.  As noted by Judge Orme’s concurring opinion, the
consequences are that “some real estate titles will be other than as shown by
recorded documents, other than as memorialized in judicial decrees, and other
than as an inspection of the property would suggest.”  Q-2, LLC v. Hughes, 2014 UT App 19, ¶ 19.  Therefore, exercising an increased level of care is now necessary to insure the concistency of boundaries in accordance with recorded documents before purchasing and maintaining those boundaries after purchase.

Copyright © Daniel L. Day 2014