Legal Update


  • September 27th, 2012
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The California Court of Appeal recently held that a long standing encroaching fence does not establish the new property line between two parcels despite the agreement of the adjacent owners, if a survey can accurately determine the true property line.   Martin v. Van Bergen (2012) 146 Cal.Rptr.3d 667.

FACTS:  In 1997, Defendants (Van Bergen) purchased a parcel consisting of a residence and an almond orchard. In 2005, Plaintiff (Martin) purchased a contiguous parcel of land improved with a residence and a vineyard.

The common boundary between the parcels is approximately 1,300 feet long. It runs along the eastern edge of the Martin’s parcel and the western edge of Van Bergen’s parcel. A fence ran over Martin’s parcel for at least part of the 1,300 feet parallel to the boundary. The fence had existed in the same location for many years and had been placed there by agreement of the prior owners working with their neighbors.  Both prior owners were certain the fence was on the property line. The area between the boundary and the fence was planted with almond trees. Van Bergen’s almond orchard encroached onto Martin’s parcel.

In 2005, three surveys were performed to establish the boundary between the parcels. Two surveys came to the same conclusion that Van Bergen’s orchard encroached onto Martin’s parcel. A third survey placed the boundary in a different location. The existing fence was not on any of the surveyed boundaries.

The trial court concluded Van Bergen did not establish the fence as the boundary under the doctrine of boundary by agreement. The court found that the two surveys accurately established the true boundary, and that the third survey was in error. The court quieted title in Martin based on the boundary established by the two surveys. Van Bergen appealed.

DECISION:   Van Bergen argued the boundary line was uncertain based on the three surveys. The court reasoned that the question is not whether the boundary is ambiguous, but whether a survey can accurately locate the true boundary. If a survey derived from a deed or other legal document can accurately locate the boundary, the policy favoring certainty in real property title militates against establishing a boundary by agreement. Van Bergen’s own expert conceded that, if asked, he could accurately survey the boundary between the properties.

Van Bergan also argued that mutual mistake is sufficient to show “uncertainty”. The Court concluded that case law requires “deference to the sanctity of true and accurate legal descriptions….” Bryant v. Blevins, supra, 9 Cal.4th at p. 55. Thus, a boundary is not uncertain if it can be ascertained by an accurate survey.

The court held that the doctrine of boundary by agreement requires that there be: (1) an uncertainty as to the true boundary line, (2) an agreement between the coterminous owners fixing the line, and (3) acceptance and acquiescence in the line so fixed for a period equal to the 5-year statute of limitations.

Van Bergen argued Martin’s case should be barred by the statute of limitations because Martin knew the fence was in the wrong place when he purchased the property in 2005 and had acquiesced and accepted the boundary for more than four years. The court ruled that the applicable statute of limitations for a quiet title action between neighbors relating to a disputed boundary was the five-year statute of limitation for an action to recover real property or possession thereof (CCP § 318), not the general four year limitations statute that applies when no other limitations statute is applicable (CCP §§ 343).

ANALYSIS:   This decision demonstrates the preference of the court to keep property boundaries in the correct location as determined by deed and not allow them to be changed by mistaken agreement of the parties who build a fence without a survey in the wrong location.  Uncertainty of the property owners does not mean the true location of the property line is uncertain.  Establishing a new boundary by agreement requires uncertainty in the survey coupled with an agreed-upon property line for a minimum period of five years.


Full text of the decision: