Boundary Issues:


Associations and Owners Often Face Problems Involving Damage and Repairs that Straddle or Cross Property Lines


Bennett Taylor and Allison Peryea


A defining moment in many people’s lives is when they purchase their first home. The promise and potential as a new homeowner feels unlimited. What many don’t realize is that the issues you may face as a homeowner—or indeed as a community association— often cross property boundary lines. This article addresses several boundary issues that owners and associations frequently deal with concerning trees, surface water, fences, party walls, retaining walls and boundary lines in general.


Note that the first inquiry to make in a situation in which an improvement appears to be on a boundary line is often whether the improvement is located on one parcel or another, or whether it straddles the two. This may involve examining legal descriptions and maps, and ultimately may require hiring a surveyor.


Boundary Lines Boundary line disputes are often emotionally charged matters that can last for years. The most certain way to determine “on-the- ground” boundary lines is to hire a surveyor, which can be expensive. The surveyor can map boundary lines on the ground based on surveyor stakes and the legal descriptions of the properties.


But two legal doctrines may allow people to move those boundaries based on the conduct of the people who have owned the property on either side of the line: 1) adverse possession and 2) mutual recognition and acquiescence.


To establish a claim of adverse possession, the burden is on the person claiming adverse possession to prove by a preponderance of the evidence (i.e., more likely than not) that the claimant’s possession is: (1) exclusive; (2) actual and uninterrupted; (3) open and


14 Community Associations Journal | January/February 2018


notorious; and (4) hostile. Nickell v. Southview Homeowners Ass’n, 167 Wn. App. 42, 50 (Div. 2, 2012). Each of the necessary elements for an adverse possession claim must have existed for ten years. A claimant can satisfy the open and notorious element of adverse possession by showing either: (1) that the title owner had actual notice of the adverse use throughout the statutory period, or (2) that the claimant used the land such that any reasonable person would have thought he owned it. Hostility for an adverse possession claim requires that the claimant treat the land as his own as against the world throughout the statutory period.


Claims based on mutual recognition and acquiescence arguments involve purported boundary lines demarcated by things like fences and roads. The elements of mutual recognition and acquiescence include:


(1) The line must be certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.;


(2) in the absence of an express agreement establishing the designated line as the boundary line, the adjoining landowners, or their predecessors in interest, must have in good faith manifested, by their acts, occupancy, and improvements with respect to their respective properties, a mutual recognition and acceptance of the designated line as the true boundary line; and


(3) the requisite mutual recognition and acquiescence in the line must have continued for that period of time required to secure property by adverse possession.


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