As noted in my last post on adverse possession, a party (“claimant”) may gain ownership over another’s land by satisfying a four part – the claimant’s possession of the land was: (1) exclusive; (2) uninterrupted, (3) open and notorious; and (4) hostile for a period of years – generally 10 years.
In many boundary dispute cases, a claimant is unable to show that they possessed the property in dispute. A common example is a field enclosed by an old fence that the claimant rarely ventured into. Even if the claimant mowed the weeds once a month or so during the summer – did they really use or possess the field?
A fall back theory that may be available in situations where an old fence or other item such as monuments, a road or driveway, etc., divides two properties, is the doctrine of Boundary by Acquiesce and Recognition.
The essence of this theory is that if there is a clearly defined boundary between two properties that the respective owners have recognized and treated as the boundary between their respective land for a period of years – usually 10 years, then that boundary will be recognized by the courts.
The test for establishing Boundary by Acquiesce and Recognition, was most recently laid out by the Washington State Supreme Court in the 2010 case of Merriman v. Cokeley. In that case, the court noted that “A party claiming title to land by mutual recognition and acquiescence must prove (1) that the boundary line between two properties was ‘certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.’; (2) that the adjoining landowners, in the absence of an express boundary line agreement, manifested in good faith a mutual recognition of the designated boundary line as the true line; and (3) that mutual recognition of the boundary line continued for the period of time necessary to establish adverse possession (10 years).”
Under Boundary by Acquiesce and Recognition, the focus moves from how the claimant has used the property to the alleged boundary. In the Merriman v. Cokeley case, the claimant was asserting Boundary by Acquiesce and Recognition based on a boundary line marked by survey stakes that had become overgrown with blackberry buses, weeds, and ivy. In rejecting this claim, the State Supreme Court held that “where the disputed area is overgrown, more than isolated markers are required to prove a clear and well-defined boundary. A fence, a pathway, or some other object or combination of objects clearly dividing the two parcels must exist.”
This blog post is offered for general information and educational purposes only. It is not offered as legal advice and does not constitute legal advice or opinion. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-todate. You should not act or reply upon the information in this post without seeking the advice of an attorney.