Good fences make for good neighbors right? Well for an attorney a lot goes into that question. How long has the fence been there? Is it a new fence? Does it meet zoning requirements? Is it on the property line? What is the purpose of the fence? There are many situations where a fence has destroyed tranquility in the neighborhood.

Utah has several laws and doctrines on boundary lines. Depending on your situation you may wish to take advantage of one or the other. Many of the doctrines have very specific time periods. So, if you are thinking, “the neighbor’s fence is in the wrong spot, and it almost been there 20 years.” You better keep reading.

Typically one gets title to their property by their deed. The deed is recorded and this is called record title. However, record title is only one part of the equation. The other part is occupation. At law when your deed conveys an interest in property by describing a location there is a presumption that you own the property. If there are no other facts or circumstances ownership of the property will rest with the deed holder.

However, there are almost always other facts and circumstances. Therefore the Courts have created three main boundary doctrines. Boundary by Estoppel, Boundary by Agreement, and Boundary by Acquiescence. Each of these doctrines are in equity. Each of these doctrines, if proven, will also supersede a deed.

Boundary by Estoppel arises when you rely on your neighbors representation to your detriment. Such as by being told that you are okay to build in a particular location only to later have the same person or interest holder claiming that your shop is now theirs. The Court has articulated three requirements for invocation of the doctrine of equitable estoppel: “(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.” Bahr v. Imus, 2011 UT 19, P33, 250 P.3d 56, 65, 2011 Utah LEXIS 35, 19, 679 Utah Adv. Rep. 4 (Utah 2011) When these situations arise, a lot of emotions can be built up. It is usually a good time to contact a competent real estate attorney. These types of claims are very fact intensive and a good attorney can help build your case and tell your story.

The next conflict, Boundary by Agreement, usually arises where the parties have agreed to a boundary, either orally or in writing and for whatever reason one of the neighbors or interest holder no longer likes the agreement. The Court has declared the following elements of Boundary by Agreement, “(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.” Bahr v. Imus, 2011 UT 19, P41, 250 P.3d 56, 66, 2011 Utah LEXIS 35, 24, 679 Utah Adv. Rep. 4 (Utah 2011). In some situations these cases can be very straightforward. In others where the agreement took place many years ago or by the grantors in interest it can become very complicated. When this situation arises it is important to consult with a competent attorney.

Sometimes there is no agreement, there is no detrimental reliance, it is just known by the parties where the boundary to the property is. Maybe because there has been a fence in a location since before the pioneers arrived in the valley, or uncle Mark planted that row of trees on the boundary, or maybe each side has always farmed one side of the river and the other the other. For whatever the reason the boundary has always been recognized. Then a new comer comes in, hires a surveyor, and says that his record title says he owns to the middle of your hay field. Luckily, the Court’s have recognized this issue and have created a rule to solve it. Although it may be someone’s intent to deed a certain piece of property, their description does not match the fence. The Court has recognized that the intent to grant that within the fence is of greater value than the words on the paper. However, because record title is important the Court has outlined several factors that must be met “(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, (4) by adjoining landowners.”Bahr v. Imus, 2011 UT 19, P35, 250 P.3d 56, 65, 2011 Utah LEXIS 35, 20, 679 Utah Adv. Rep. 4 (Utah 2011). The Court has deemed a long period of time to be 20 years. So, if you or your neighbor’s fence has been there for 19 years 11 months it is time to take action. Record title will beat the fence. Once the 20 year period has elapsed with the other factors in place the Boundary by Acquiescence claim will ripen and produce the fruit of a successful action. Like the other claims Boundary by Acquiescence can be extremely fact intensive and difficult to prove. An attorney that knows the rules can easily guide you to a successful outcome.

Although a good fence can create a good neighbors, it can just as easily cause many problems. It is important to understand what your fence might mean to you. Now that you understand the respective claims a little bit better assess your boundaries. You may find they are bigger than you think.