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Boundary Line Disputes: Neighbor Divorces

by Kevin J. Stine, Shareholder

Many of you, especially in rural areas, have purchased large parcels of real estate.  Typically, due to perceived costs constraints, a survey is not conducted prior to purchase.  Rather, the seller simply “walks the boundary lines” with the purchaser and points out “obvious” landmarks such as a fence, tree line, or field roads, purportedly setting forth the alleged boundary lines.

All of this is fine until one party actually does decide to get a survey.  In many cases, surveys show that the actual property being deeded is different than what is believed or what seems obvious by natural or man-made boundary line markers.  Indeed, two separate surveyors could come up with two different property lines.  Most of the time, these discrepancies are minor, and are not usually worth fighting over.  However, when dealing with large tracts of land, it is not unusual for a survey line to make a difference of three acres or more.  With the high prices of land in today’s market, three acres means a lot of money.

If your neighbor obtains a survey, and the survey shows that the fence that you treated as the property line for more than twenty years is in fact not the property line, are you out of luck?  The answer, in most cases, is “no”.  Illinois law recognizes several doctrines that allow the deeded and surveyed property line to be changed under certain circumstances. 

The most commonly known doctrine is adverse possession.  The doctrine of adverse possession requires that the disputed property be possessed by a non-owner for twenty continuous years (including previous owners in succession to title); that the possession be hostile or adverse, and without permission; that there be actual possession (such as planting crops or maintaining a road); and under the claim of title inconsistent with the owner.  Accordingly, if you treat a certain parcel of property (such as a disputed strip of land) as yours for a period of twenty years continuously, then at the end of that twenty years, Illinois courts will recognize that you are now the owner, despite what a survey or deed may show. 

Another similar doctrine is boundary by acquiescence.  In order to prevail under this doctrine, the boundary line must be unascertained or in dispute (this usually occurs when two deeds have inconsistent legal descriptions that overlap); there must be an oral agreement regarding the setting of the property line between the two disputed owners, and actual possession consistent with that agreement; or, an agreement must be implied by the acts of the parties and acquiescence to that property line for a considerable period of time.  This simply means that if a boundary line is vague or unknown, and the parties agree to set a certain boundary line, and honor that agreement for a period of years, the court will recognize that agreed boundary line as the legal boundary line, despite what a deed or survey may state.

All of these cases are fact intensive, and the outcome of any particular case will depend on the facts in controversy.  Many times, neighbors who have been friendly for long periods of time become instant enemies when a boundary line dispute arises.  In most cases, the disputed strip of land is not worth the cost and expense of litigation, as well as the emotional cost and expense involved, to fight over the disputed land.  Parties are usually better off to simply reach an agreement, and remain as friendly as possible.  However, when large portions of land are involved, it may be necessary to litigate the issue of adverse possession or boundary by acquiescence versus a survey line. 

In summary, if you are purchasing a large tract of land, it is usually best to get the survey done before closing.  At least you will know the surveyed boundary lines, and whether there is any dispute associated with those boundary lines with the neighbors.

Kevin J. Stine is an experienced litigation attorney who works in the Mathis, Marifian and Richter, Ltd. Belleville and Nashville, Illinois offices.  Kevin specializes in commercial, civil and probate litigations along with real estate and banking law.

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