As discussed in the introduction to Border & Boundary Disputes, most such disputes involve reference to land surveys. These surveys are meant to show exactly where one parcel of land ends and another begins or, put another way, where exactly the border between your property and that of your neighbor’s is located. Reliable and correct surveys usually carry the day – if the survey is correct then the boundaries indicated upon it are often deemed binding and settle the dispute. However, because surveys can often be inaccurate or incorrect (due to age, surveyor mistake, poor equipment, improved technology, etc.), the law had to develop a way of settling border and boundary disputes when the surveys themselves could not. This principle is called Boundary By Practical Location (BBPL), which we’ll refer to as BBPL for short.
BBPL is similar to Adverse Possession in a number of ways. First, under both doctrines one landowner claims the rights to the land of another. Second, under each doctrine the loss of property is the result of the actions of the landowners themselves with respect to the land in question. Third, all BBPL cases, like most Adverse Possession cases, involve neighboring landowners. However, BBPL is different from Adverse Possession in a very important way. In Adverse Possession, the person claiming ownership of the land has to meet a number of stringent requirements and must do so for at least 15 years uninterrupted. In BBPL situations, on the other hand, the landowner who acquires land from his or her neighbor may do so without following many of those very same stringent requirements, and in some cases may do so in less than 15 years.
BBPL establishes the boundary line between two pieces of property which share a common border by choosing a “practical” location for it based upon the actions of the property owners involved with regard to the disputed area or disputed border. In a simplified sense, if the landowners in question treat the property boundary as being in a certain location, despite the fact that the boundary is actually legally somewhere else, the owners may have established the boundary at the inaccurate location through their own use and actions.
The location of a boundary that has been established through BBPL is set in one of 3 ways: (1) acquiescence; (2) agreement; and, (3) estoppel. If the location cannot be set by acquiescence, agreement, or estoppel, then BBPL does not apply, and the landowners, or more likely a court, will have to go back to the drawing-board to determine the actual boundary.
BBPL through Acquiescence
Establishing BBPL through acquiescence is essentially a determination that the border line between two pieces of property has been relied upon by one of the two landowners, and has been acquiesced in (i.e. not objected to) by the other landowner for a period of at least 15 years. Thus, BBPL by acquiescence has three main components: reliance, acquiescence, and time.
First, the location of the border must be relied upon by one of the landowners. Reliance can be demonstrated in any number of ways, but the easiest method of demonstrating reliance is to show that the landowner actually relied upon the border or boundary location when deciding how to use their property. For example, a landowner builds a structure on the disputed area, mines the disputed area, or farms the disputed area, all because the landowner believes that the border is in a certain location despite the fact that the legal border is in fact somewhere else. In other words, the landowner relies upon the border being in a certain location.
Second, the landowner’s neighbor along the border in question must acquiesce in the border at that location. This does not mean that the neighbor must actually understand that an incorrect or inaccurate border is being used. Rather, this means that the neighbor allows the inaccurate border to function as the actual border between the two pieces of property and does not object to the border being in that particular location.
Finally, in order to establish BBPL by acquiescence, the two property owners must keep this border for a period of at least 15 years. Therefore, if the parties move the border every year, or if the neighbor who is actually losing land objects to the location of the border prior to 15 years passing with the border at the wrong location, there can beno BBPL by acquiescence.
As an example, imagine that you own a piece of property which happens to be seperated on one side by a fence errected by your neighbor Chad. It is your belief that Chad has built the fence along the border of the two proeprties, and despite the fact that Chad never specifically states that this is true, he also never says that the fence is not along the border of the two properties. So, relying upon the location of Chad’s fence as the border between your property and his, you begin to use all of your land, right up to the fence itself, to grow corn for harvest. You continue this practice for at least 15 years, and all the while Chad never once argues that the fence is not the actual boundary line between the two properties.
Finally, after more than 15 years have passed, Chad comes to you and tells you that he would like you to stop growing corn on his land. He tells you that even though there is a fence in place, the property line between your land and his is actually some 10 feet on your side of the fence, and that you have therefore been farming on a portion of his land.
In a dispute between yourself and Chad as to the actual location of the boundary between your two properties, you would be able to argue that you and Chad established the boundary betwen your properties as being the fence line. Your argument would be that because of the fact that you relied upon the fence as being the actual border for more than 15 years, and furthermore, because Chad acquiesced to this location for more than 15 years, that this became the actual border. In such a situation, a court could determine that you and Chad had established the boundary between your properties as being the fence, and that you are therefore the owner of the disputed 10 feet of land.
BBPL by Agreement
Establishing BBPL by agreement requires that the owners of two bordering pieces of land expressly agree that the boundary line between the two pieces of property is at a certain location, and that after the boundary line is agreed to, the two property owners do not object to the boundary line they have established for a significant priod of time.
This method of establishing a boundary between two pieces of land simply recognizes the ability of property owners themselves to bargain and contract with each other as to the specific location of the border between their properties. So long as the location is expressly agreed upon (i.e. actually agreed to by the landowners as opposed to one landowner standing by passively but not agreeing), and the landowners acquiesce in the boundary they agree to for a significant period of time, the agreed upon location will become binding through BBPL by agreement.
One interesting distinction between BBPL by agreement and BBPL by acquiescence, is that the boundary only needs to exist where the parties have located it for a significant period of time, as opposed to at least 15 years, as is required under BBPL by acquiescence. So what qualifies as a significant period of time? Unfortunately, there is no definitive answer as to what constitutes a significant period of time under this theory of BBPL. Courts have found in some cases that 9 years qualified as a significant period of time, but less time may be sufficient depending upon the circumstances.
As an example of BBPL by agreement, imagine that you buy some land next to Jenny. It just so happens that there is a fence which seemingly separates your property from Jenny’s property. After looking at the fence location with Jenny, the two of you agree that you each want to treat the fence as the proper border between your two pieces of property. After you and Jenny agree that the fence shall operate as the border for your properties, you each go about your business for the next several years.
At some point, you happen to get your property surveyed in connection with a home remodel that you are doing. The surveyor comes out to your property and begins the process of surveying, but unlike surveyors of the past, this surveyor has all new top of the line technology, such as GPS, to pin-point with exactitude your property boundaries. When the survey is complete, you take a look and quickly realize that the new survey shows that the fence you and Jenny agreed would act as the border between your properties is actually sitting some 20 feet in from your actual property line. In other words, the survey shows that 20 feet of your property is sitting on Jenny’s side of the fence.
You then go to Jenny and object to the fence remaining where it has been. Instead, you show her the survey and argue that you were each mistaken about the location of your property line, and that the fence should be moved 20 feet further onto Jenny’s side. Unfortunately for you, Jenny will be able to assert BBPL by agreement, and can seek to have the fence become the actual and permanent legal border between your two properties. Jenny will likely be successful in doing this because you each agreed that the fence, in its then current location, should be the actual boundary between your two pieces of land, you acquiesced in this agreement without objecting, and a significant period of time passed with the fence operating as the boundary.
BBPL by Estoppel
BBPL by estoppel occurs when one landowner knows the actual true border between their land and the land of their neighbor, but this landowner fails to inform her neighbor of the true border between their land, allows her neighbor to encroach past the true border and onto her land, and then sits by as her neighbor spends time and/or money improving the land they have encroached upon. Logically speaking, no one would spend their time or money improving land that may belong to their neighbor, and that is exactly what BBPL by estoppel seeks to protect against.
Estoppel is a legal principle that prevents someone from arguing a certain point, even though they may ordinarily be legally entitled to do so, because that individual’s past actions make it patently unfair for them to do so. In the case of BBPL by estoppel, there are several elements which need to be established. First, one landowner must actually know the true location of the border between their land and that of their neighbor. Second, that landowner, the one who knows the true border, must fail to share the true location of the border with his neighbor. Third, the neighbor cannot know the true location of the border and must actually rely upon some other location as being the true border of the two properties. Finally, the neighbor’s reliance on the false location of the border must cause him to encroach past the true location of the border and/or spend time or money improving the area between the true border and what the neighbor believes is the border. If each of the above steps has taken place, the landowner, having known the true location of the border the whole time, will be estopped (barred) from arguing that the border between his land and that of his neighbor’s should be the true location. The bottom line is that the landowner should have told his encroaching neighbor where the true border was, and cannot sit idly by as his neighbor incurs time and expense in improving a portion of land, and later claim that he should get to keep the land.
For example, you buy a piece of land in northern Minnesota that you want to build a small cabin on so that you can go hunting on the weekends. After you buy the land, you head out to the property to determine where to build your little cabin. While locating a good spot, you notice your neighbor John and strike up a conversation. Ultimately, you determine that you should build your cabin fairly close to John’s, as this gives you the best access to the only roadway near your property. You then proceed to tell John where you are going to build the cabin, put some stakes out marking the area where you are going to build, and tell John to take a look and let you know if there are any issues that he has with this location.
Unbeknownst to you, John, upon looking at your staked out area, immediately recognizes that the whole area you have staked out is actually located on John’s land, and not on your land. Rather than tell you about this fact, however, John decides that he is just not going to say anything, and simply sits back on his porch watching while you get to work building your new cabin. After the building is erected, John approaches you and tells you that you have built your new cabin on his land not yours. John even takes out a survey he has had for some time, and with the aid of the survey, John shows you where the actual true border is between your property and his. John then demands that you get off his property and that you remove your cabin too, or give it to him for a cheap price.
Under such circumstances, you can argue that the boundary has been established by practical location, and furthermore, that John should be estopped (i.e. barred) from arguing that the boundary has not been established as such and should revert back to the true boundary. Essentially, John should not be able to sit back while you spend your time and money building a cabin on what you thought was your land when John knew the whole time that the land was actually his. John should have told you about your mistake as soon as he realized that you did not know where the true border between your properties actually was, and since he chose to wait until you expended considerable efforts, time, and money, John can now live with the consequences.