A 681Kb PDF of this article as it appeared in the magazine—complete with maps—is available by clicking HERE
In this installment of Footsteps we review the court decision in Tarin versus Sniezek. This case was decided by the Fourth District Court of Appeal in the State of Florida. It involved a claim for land enclosed by an encroaching fence. This case has a few things to teach us about the legal doctrine of "boundary by acquiescence" and raises some interesting questions about the land surveyor’s role in the boundary survey obtained by one of the parcel owners.
• 1995: Tarin purchases Lot 97. At, or shortly after the time of purchase, Tarin obtains a boundary survey of Lot 97.
• 3/2003: Sniezek acquires Lot 99, the north adjoiner to Lot 97.
• 5/19/2005: A summary judgment is ordered in favor of Sniezek in a boundary dispute with Tarin.
• 11/29/2006: After an appeal by Tarin, the appeals court issues a decision in favor of Sniezek.
The 1995 boundary survey obtained by Tarin showed the correct location of the boundary common to Lot 97 and Lot 99.
The boundary survey showed only the western segment of three segments of the fence on the boundary common to Lot 97 and Lot 99.
The east segment of the fence on the boundary common to Lot 97 and Lot 99 encroached on Lot 99 and enclosed property in Lot 99 that was claimed by Tarin.
Tarin maintained the fence along the common boundary and had exclusive control of the disputed property since 1995.
The Sniezeks informed Tarin of the fence encroachment after their review of a property "appraisal."
Tarin asked the trial court that first heard this case to establish the boundary common to Lot 97 and Lot 99 at the location of the fence using the "boundary by acquiescence" doctrine.
The trial court concluded that "recorded instruments in the chain of title, in addition to the survey, clearly indicated the boundaries of the two lots" and rejected Tarin’s claim that the fence location was the location of the boundary.
The key legal question in this case was: Did the location of the encroaching fence create enough uncertainty in the boundary between Lot 97 and Lot 99 to allow the establishment of the boundary by acquiescence?
The Court’s Decision
The court identified three (3) factors needed to establish a boundary by acquiescence. These are:
• Uncertainty or dispute as to the location of the true boundary.
• A location of the boundary by the parties that share the boundary.
• Acquiescence in the location of the boundary for the prescriptive period.
ments needed to establish a boundary by acquiescence.
The disputed fact in this case was the first factor related to uncertainty in the location of the true boundary. (It seems from the facts of the case that both parties had acquiesced to the boundary as marked by the fence for the prescriptive period.) The court clarified the requirement for uncertainty by defining it as an actual lack of knowledge on the part of BOTH parties as to the location of the true boundary.
In this case Tarin argued the requirement for uncertainty in the boundary was met because of the location of the encroaching fence and the length of time for which it had been standing. To make this argument, Tarin relied on another case involving a fence and boundary by acquiescence. This other case, McDonald versus Givens, stated that "the placement and duration of a fence itself, absent another explanation for its specific location, is sufficient evidence of uncertainty."
However, the District Court of Appeal for Florida pointed out an important difference in McDonald versus Givens when compared to Tarin versus Sniezek. Tarin was aware, because of the Lot 97 survey he obtained, that the fence was not on the boundary common to Lot 97 and Lot 99. In contrast, in McDonald versus Givens, the fence had stood for 13 years–a period that was longer than the prescriptive period–before a survey was obtained. McDonald was thus not aware of the true boundary location, while Tarin was aware. He did not need to rely on the fence for knowledge of the boundary. Tarin argued that he didn’t read his boundary survey of Lot 97. He therefore claimed ignorance of the true boundary. This argument didn’t hold water with the court. The court clearly stated that Tarin’s "failure to read the survey did not provide him with the requisite uncertainty to support a boundary by acquiescence."
As his final argument, Tarin attacked a weakness in the Lot 97 boundary survey he obtained. The survey omitted a depiction of the eastern segment of the fence. (The court didn’t comment on the reason for this omission in the survey in its decision.) Tarin claimed this omission of the encroaching fence segment led him to believe all the property enclosed by the fence was his. The court disagreed. Although it acknowledged the survey didn’t show the encroaching fence segment, it ruled the survey did provide Tarin with the knowledge of his parcel’s true boundaries. As a result, he didn’t meet the first of three (3) requirements needed to establish a boundary by acquiescence.
A number of questions arise when you read through this court decision. Let’s start with questions related to the boundary survey of Lot 97 that was obtained by Tarin. Why did the surveyor performing the survey not show the encroaching fence segment? These omissions seem even more strange when you consider the surveyor did show the other two (2) segments of the fence that did not encroach on Lot 99. Was the surveyor asked by Tarin not to show the encroaching fence segment? Did the surveyor leave it off the survey because he didn’t want to become embroiled in a boundary dispute? Whatever the answer it certainly wasn’t a good idea for the surveyor to omit from his survey what became a key physical feature in a subsequent boundary dispute. If he had shown the fence on his survey how might things have turned out differently?
I’m also curious if the surveyor hired by Tarin informed the neighbor of the encroachment. Did the land surveyor attempt to get Tarin and his neighbor to work out the dispute over the fence? Was Tarin’s neighbor at the time unresponsive or apathetic? Did Tarin tell his surveyor not to speak to the neighbor about the encroaching fence? Certainly the surveyor is to be commended if he attempted to inform the neighbor about the problem with the fence and to bring about a resolution out of court. If he failed to do this, in my opinion, he failed to fulfill his duty to protect the interests of adjoiners.
In its decision the court stated that "shortly after the Sniezeks purchased Lot 99 in March 2003, they reviewed an appraisal which showed their property’s true boundaries. The appraisal revealed that the fence encroached onto Lot 99 and that the disputed property was actually part of their lot." What sort of appraisal was this? Did it include data from another survey of the properties in question? The court doesn’t comment on the nature of the "appraisal", but I find it interesting that the Sniezeks relied on it to pursue a boundary dispute. Was a surveyor ever hired by Sniezek to determine the relationship between the encroaching fence segment and their lot boundaries? Who prepared the appraisal mentioned in the court decision? Where they qualified to comment on the fence location in relation to the common lot boundary?
This court case
provides some important lessons for land surveyors:
• Pay attention to fences and other physical occupation. This physical occupation can play a significant role in ultimate decisions about land ownership and the ultimate location of a boundary.
• Locate and show all occupation along the parcel boundary when it is possible to do so. Omissions of occupation can create problems after the survey is complete. Parcel boundaries are often intangible, while physical occupation along the boundaries is not. Show the relationship between them on your survey.
• A boundary survey provides "notice" to a land owner. This notice may be recognized legally by the court. The court may bar the owner from claiming ignorance of the information shown on a land survey. This can impact his options or legal remedies in a boundary dispute. This case shows the weight given to a boundary survey by the court.
Landon Blake is currently project manager and project surveyor for a small civil engineering and land surveying company in California’s Central Valley. Licensed in California and Nevada, his many activities include speaking and teaching at group conferences around the state.
A 681Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE