Landowners may be advised to sue to avoid a finding of tacitly acquiescing to a boundary
Posted on 01/21/2016 at 10:39 AM by Mollie Pawlosky
Lisa and Kris Nafziger filed suit against their neighbors, Dan and Trudy Smith, to establish a disputed boundary. The Smiths had a fence on the south side of their property since at least 1992, which the Nafzigers contend is not on the property line; the Nafzigers contend that the Smiths' parcel boundary should be pushed north thirty-three feet. After the trial court found for the Smiths and concluded that the fence and an extending line constituted a boundary by acquiescence, the Nafzigers appealed. In Nafziger v. Pender, No. 15-0327 (Jan. 13, 2016), the Iowa Court of Appeals affirmed the district court's decision.
A boundary by acquiescence must be proven by clear evidence, and the owners must acquiesce in the boundary line for at least ten consecutive years. The district court found that the Smiths' fence, which existed from at least 1992 (and possibly as early as 1982), is the boundary line between the property owned by Nafzigers to the south and the parcel owned by Smiths to the north. The court held that the Nafzigers' predecessors accepted the location of the fence as the boundary line and submitted tacitly to the fence as the dividing line to Smiths' land to the north, and their land to the south. The inaction of Nafzigers' predecessors in title to claim or exercise control over the land to the north of the fence establishes their acquiescence.
The Nafzigers disputed the trial court's findings on appeal, arguing their predecessors did not believe the fence was the property line. The Nafzigers' brief on appeal included a chronology stating instances: where a former property owner had asked the Smiths to move the fence; where a prior landowner had removed portions of the fence and told the Smiths that he did not believe that the fence was the boundary; where the same prior owner had an argument with Smiths regarding the fence; and where another prior owner demanded that the Smiths remove the fence. Nevertheless, the Court of Appeals in its opinion summarized the Nafzigers as arguing simply that their predecessors did not believe the fence was the property line. The appellate court then concluded, Acquiescence may be inferred by the silence or inaction of one party who knows of the boundary line claimed by the other and fails to dispute it for a ten-year period.
The Court of Appeals then affirmed the trial court. Considering the chronology set forth in the appellants' brief, landowners involved in boundary line disputes may be advised to file suit to establish a boundary, if the landowner wants to dispel the notion of a boundary by acquiescence. Although not specifically stating a rationale, it seems as though both the trial court and the Court of Appeals did not find the prior landowners' actions to be enough to avoid a conclusion of tacit submission.To make a property owner's intentions extremely clear, rather than simply verbally disputing the boundary, the property owner should consider filing suit to make its position clear. For questions regarding Nafziger v. Pender, or regarding other real estate disputes, contact Mollie Pawlosky.
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