2.20 Boundary Line Disputes

2.20.1

In General

On occasion, because the boundaries of certain properties happen to be vague, imprecise, defective, or erroneous due to mistakes in legal descriptions, surveys, plats, or measurements, controversies arise between adjoining owners in connection with the proper location of the boundaries. Gaps, encroachments, or overlaps are generally the source of these controversies.

In some cases, the boundary line problems are easily ascertainable and simply resolved, but in others, the problems are of a more complex nature and a considerable amount of work and expertise is required to resolve them.

In this last context, in order to determine the extent and nature of the problem and its possible resolution, a comprehensive survey of the area afflicted by the problem is required.

Where the location of a boundary is uncertain, the primary rule applied in construing and interpreting descriptions is that the intent of the parties controls and is to be followed; all rules of construction are designed to carry out the intent of the parties, and once this intent is ascertained, all other rules must yield to and be governed by it.

In the absence of a clear intention to the contrary, when attempting to determine a boundary, the order of priority for conflicting calls is as follows: (1) calls for natural objects or landmarks; (2) calls for artificial objects; (3) calls for courses and distances; and (4) calls for quantity (It is only when the calls of an instrument ae inconsistent or lead to different results that these rules ae resorted to or invoked.)

2.20.2

Overlaps

The existence of an overlap is a very serious title insurance matter which must be properly handled before any title policy is insured. In case of an overlap, no attempt should be made to:

  • Apply either the remnant or apportionment theory to the overlap.
  • Rely on adverse possessory rights which have not been adjudicated.

Situations generally found in connection with overlap problems:

Property to be insured overlaps on adjoining property

If you see an overlap, do not issue a policy without an appropriate exception. Procedure:

  • Determine the exact area and dimensions of the overlap.
  • Except the area upon which the overlap occurs.
  • Refuse to insure the overlap area unless either:

    • Deeds from owner(s), parties in interest, lienors, and encumbrancers of the overlapped area are executed and filed for record; or,

    • Properly conducted and completed judicial proceedings vest title of the overlapped area into the present owner of the overlapping property.

Adjoining property does overlap into the premises in question:

  • Determine the exact area upon which the overlap occurs.
  • Except the area upon which the overlap occurs.

Boundary lines of properties that either overlap into each other or cannot be determined:

  • Procure the establishment through the execution of a boundary line agreement of a common boundary line between the properties.

    The agreement can, if expertly drafted and duly executed by the respective owners, parties in interest, lienors, and encumbrancers of both properties, establish the common boundary line and in addition, operate as a quitclaim deed. Finally, once duly executed, the agreement must be filed for record.

    In the absence of a formal boundary line agreement, and after having eliminated the existing overlap by the use of two perfectly drafted legal descriptions, procure quitclaim deeds duly executed by the respective owners, parties in interest, lienors and encumbrancers of both properties. These quitclaim deeds must be filed for record.

  • Recorded boundary line agreement establishes one of the boundaries of the property.

It is necessary to ascertain that:

  • The parties who executed the agreement had good title to their properties and that, in addition, were joined in that execution by the parties in interest, lienors, and encumbrancers of the respective properties.

  • The agreement contains the necessary and proper wording, and if that is not the case, that proper quitclaim deeds from the aforementioned parties were executed and recorded.

  • The recording data of the agreement has been shown since its execution and recording in every instrument affecting the claim of the title of the properties.

  • The lien of a mortgage upon a piece of land cannot be released or established by a quitclaim deed or boundary line agreement. Specific instruments must be executed and recorded in order to accomplish this objective.

  • In some jurisdictions, it is necessary to file a new parcel or plat to comply with subdivision requirements and city ordinances.

2.20.3

Tax Considerations After Change In Boundary Line Of Property

Any change, modification, or adjustments made in the legal descriptions of property, for the purposes of eliminating a gap or overlap may make it necessary to raise an exception in the title policy in connection with possible additional real estate taxes.

2.20.4

Water and Watercourses as Boundaries

Boundaries may consist of waters or watercourses, and calls setforth as a boundary may refer to such objects. As in all cases of determining boundaries, the intent of the parties, if ascertainable, is controlling.

A grant contiguous to a non-navigable stream, without reservation of title to the bed of the stream is presumed to pass title to the center of the stream. As a general rule, the presumption that a conveyance of property adjoining a stream conveys title to the center of the stream does not apply to navigable streams.

However the treatment of this subject may vary from state to state and one must be familiar with one's respective state's laws on the subject.