WhitePapers – The Kilby Group

Doctrine of Acquiescence

One of the first things that come to mind when a property dispute arises is adverse possession. A lesser known doctrine (but a more common scenario) is the doctrine of acquiescence. Acquiescence does not require the elements of adverse possession and the time period can be much less. 1 Where acquiescence, unlike adverse possession which deals with title, deals with boundary lines and their physical location verses the deed description. One could have good marketable title and still be uncertain to the physical location of their boundary lines.

A boundary line which is in dispute, uncertain or unascertained may be established by acquiescence for seven years.2 Even if the line is clearly described in the deed it is still considered uncertain or unascertained if its location on the ground is unknown.3 A line may not be established by acquiescence unless there is some contention between the coterminous owners as to its location. As a result, a boundary line is established in which the coterminous owners acquiesce to its location. Coterminous owners may go for years without knowing the exact location of the boundary line dividing them and until there is some contention as to where the true line is, there is no reason to establish a line by acquiescence.

Actions or declarations by coterminous owners, along with the stationary period of time, are adequate to establish a boundary line by acquiescence. A parol agreement or even the silence of the adjoining owner (Doctrine of Laches)4 may be sufficient to fix an uncertain boundary line or establish a new one. While it is always good to put everything in writing, since acquiescence is not intended to convey land, but is to be used to determine the extent of ones bounds, the statute of frauds can be eliminated by the necessity that the oral agreement be witnessed by the possession up to the newly agreed line. 5

Erection of a fence, either by one owner or jointly, drainage ditches,6 hedge rows,7 farming or even maintenance of a straight row of trees may be used to establish the boundary line 8. Acquiescence may be established without actual possession when a declaration of both parties acknowledging the line can be shown,9 and may be established without reference to any previous agreements between the parties. 10

A boundary line once established under the doctrine of acquiescence is not only a binding agreement between the coterminous owners and those claiming under them, it is also a binding agreement on the successors in title.11 However, based on the principle of latent or secret equities, if a purchaser has not been put on notice of an agreement by the coterminous owners either by recorded instrument or evidence on the ground and their deed calls for the original boundary line, they are not bound by the agreement.

Due to the very nature of boundary line disputes, one may find the process challenging and lacking in the remedies sought. Jury trails, more times than not, become “a hopeless exercise in futility”12 and where boundary disputes are well within the jurisdiction of the Appellate Courts,13 the time and cost may prove too great. Along with the fact that appellate courts, like the superior courts, have the right of refusing to hear a case if it deems another remedy should be sought.14 An action of trespass, register title to land, summary judgment or any other statutory action to recover land could be used, but may prove to be inadequate when it comes to determining boundaries. When some other reason for equitable intervention can be proved, the lower courts have used injunction against trespass to settle boundary line disputes.

In keeping with the Legal Maxims: Ab assuetis non fit injuria (No injury is done by things long acquiesced in) and Quieta non movere (Not to disturb what is settled); the courts will not force coterminous owners to litigate what they are willing to do voluntarily.15 The courts have preferred peaceable compromise rather than a lengthy and costly legal battle, and physical altercations serve no purpose except to expose one to civil and even possible criminal prosecution. Neighbors living in harmony with long settled boundaries are much preferred to hostile conflicts that serve no purpose other than cause strife and the unsettling of ancient land marks long held as true.

When coterminous owners are able to come to an agreement, an oral agreement is sufficient if it is fully executed by actual possession up to the newly agreed upon line for the statutory amount of time16; however, it is still a better practice to place all agreements in writing and recorded. It is sufficient to have them placed on the face of the plat, duly signed, witnessed and notarized. It is also common practice to have a separate boundary line agreement drawn up or have coterminous owners to swap quitclaim deeds. Boundary line agreements are governed by the same rules as are applicable to other contracts, and as such, care should be taken to make sure that both parties are able to enter into binding agreements.

When coterminous owners are unable to reach a satisfactory agreement for both parties, arbitration may prove to be an acceptable alternative to litigation. Unlike boundary line agreements, a boundary line agreed to under the rules of arbitration may allow fiduciaries the power to arbitrate a boundary line agreement under the statue which includes guardians, trustees, executors, and administrators.17

References:

1. O.C.G.A. §44-4-6; Henson v. Tucker, 278 Ga App 859, 630 S.E. 2d 64 (2006)
2. Osteen v. Wynn, 131 Ga. 209 (62 SE 37) (1908)
3. Warwick v. Ocean Pond Fishing Club, 206 Ga. 680 (58 SE2d 383) (1950)
4. Swanson v. Swanson 269 Ga. 674 (501 SE 2d) (1998) “Whether laches should apply depends on a consideration of the particular circumstances, including the length of the delay in the claimant’s assertion of rights, the sufficiency of the excuse for the delay, the loss of
evidence on disputed matters, the opportunity for the claimant to have acted sooner, and whether the claimant or the adverse party 494*494 possessed the property during the delay. These factors are relevant because laches is not merely a question of time, but principally a
matter of inequity in permitting the claim to be enforced. Hall v. Trubey, 269 Ga. 197, 498 S.E.2d 258 (1998); Troup v. Loden, 266 Ga. 650, 651(1), 469 S.E.2d 664 (1996); Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 708(2), 38 S.E.2d 534 (1946).”
5. Hart v. Carter, 150 Ga. 289, 103 S.E. 457 (1920)
6. sacks et al. v. Martin et al., 417 Ga. 670, S.E. 2d 670 (2008)
7. Wood v. Fraker, 199 Ga. 190, 33 S.E. 2d 699 (1945)
8. Brown v. Hester, 169 Ga. 410, 150 S.E. 556 (1929)
9. Tietjen v. Dobson, 170 Ga. 123, 152 S.E. 222 (1930); Buchheit v. Gillis, 246 Ga.App. 838, 541 S.E. 2d 441 (2000)
10. Brown v. Hestre, 169 Ga. 410, 150 S.E. 556 (1929)
11. Foster v. Thomas, 193 Ga. 823, 20 S.E. 2d 80 (1942)
12. Trail of boundary disputes before a jury is often a hopeless exercise in futility, because they seldom understand the evidence. See Colley v. Dillion, 158 Ga.App. 416, 280 S.E.2d 425 (1981)
13. Hatcher v. Hatcher, 211 GaApp. 869, 440 S.E.2d 755 (1994)
14. Hall v. Christain Church of Georgia, inc., 280 Ga. App. 721, 634 S.E.2d (2006), cert. denied, (Nov. 20, 2006)
15. O.C.G.A. § 23-1-21
16. Farr v. Woolfolk, 118 Ga. 277, 45 S.E. 230 (1903); Holland v. Shackelford, 220 Ga. 104, 137 S.E.2d, 298 (1964)
17. O.C.G.A. §9-9-2; Davis v. Gaona, 260 Ga. 450 396 S.E.2d 218 (1990)

PDF of Doctrine of Acquiescene

House Bill 76 (HB76) was introduced into the 2016/2017 legislative session in hopes to undo many of the unintended consequences of House Bill 1004 (HB1004) of the 2015/2016 legislative session. Like HB1004, under HB76 plats will be recorded electronically through the GSCCCA e-file portal process and still require the three inch square box located in the upper left hand corner of all plats, reserved for the recording information to be inserted by the Clerk of the Superior Court. Under HB76, the Surveyor now has four certifications to choose from based on the type of survey performed and the process used by the local governing authority for plat approval.

Certification (i) is for the traditional approval process. Hard copies will be submitted to the local governing authority where the local governing authority will review and place their certifications, stamps, and signatures of approval on the face of the plat. The surveyor may release the plat prior to these approvals; however, the plat will need these approvals along with the surveyor’s stamp and signature prior to submitting for recording through the GSCCCA e-file portal process.

Certification (ii) is for the paperless online plat review process. The surveyor shall place an approval table on the face of the plat that contains the name of the local governing authority that approved the plat, the name of the individual who approved the plat, and the date of approval. The surveyor may denote upon the face of the plat, in place of the surveyor’s signature, restrictive language such as “DRAFT – FOR REVIEW PRIOR TO APPROVAL.” Upon approval, the surveyor shall remove such restricting language and place the surveyor’s stamp and signature prior to submitting for recording through the GSCCCA e-file portal process. (Note: Some surveyors may opt to sign the plat along with placing the restrictive language on the face of the plat when submitting to the local governing authorities for approval.)

In 2005, the Attorney General addressed a serious issue with the local governing authorities trying to subvert the public and their right to have their plats recorded. The Attorney General’s opinion was clear that the intent of the 1994-1996 General Assembly was to prevent the local governing authorities from such tactics. House Bill 1004 (HB1004) was in direct conflict with the 1994-1996 General Assembly intent and the 2005 Attorney General’s opinion. Certification (iii) is in response to this conflict and intended to protect the public and their rights to have their retracement plats recorded without undue restrictions from the local governing authorities. Certification (iii) is for retracement surveys that do not subdivide, or create a new parcel, or makes any changes to any real property boundaries. Certification (iii) allows the surveyor to perform a retracement survey along with, if any, the depicting of gores, overlaps, or other parcel delineation related to title issues or deficiencies, and may show existing or proposed easements for utilities or conservation areas. Under Certification (iii), the public shall be entitled to have their plat submitted to the GSCCCA e-file portal process for recording without further review from the local governing authority.

Certification (iv) is for those jurisdictions that do not review or approval plats, or when the local governing authority has issued a resolution, ordinance, or has a policy that approval is not necessary prior to recording. If a platted property lies wholly within such a jurisdiction under Certification (iv), the public shall be entitled to have their plat submitted to the GSCCCA e-file portal process for recording without further review from the local governing authority.

Immediately beneath the certification, the Surveyor shall place his/her signature with the seal within or next to the certification box. The Surveyor’s signature is no longer required over the seal, nor to be in contrasting color of ink.

Along with no mechanism to record a retracement survey without undue restrictions from the local governing authorities, HB1004 had no means for the public to record an existing plat. HB76 has attempted to address this through O.C.G.A. § 15-6-67(3)(i) which states “Any plats or condominium plans prepared prior to May 8, 2017, in compliance with previous statutory requirements may be recorded pursuant to this Code section so long as such documents are submitted as electronic images and presented to the clerk of superior court electronically.” Older plats meeting the statutory requirements at the time of their preparation shall be eligible for recording through the GSCCCA e-file portal process.