Arizona Supreme Court holds that a party asserting a boundary by acquiescence claim must prove by clear and convincing evidence (1) occupation or possession of property up to a clearly defined line; (2) mutual acquiescence by the adjoining landowners in that line as the dividing line between their properties; (3) continued acquiescence for ten years; and (4) uncertainty or dispute as to the true boundary.

A property owner had landscapers set concrete pavers near the property line with the adjacent property owner. But the landscapers mistakenly placed the pavers so as to reduce the property owner’s land by about 135 square feet and similarly increase the adjacent property owner’s property by 135 square feet. Subsequently, the adjacent property owner occasionally parked vehicles in the disputed area.

After a dispute arose, the adjacent property owner brought a boundary by acquiescence claim. On cross-motions for summary judgment, the trial court found that the adjacent property owner failed to provide sufficient evidence to establish such a claim. In a split decision, the Arizona Court of Appeals reversed and remanded—the majority and dissent disagreed as to the sufficiently of the evidence. The Arizona Supreme Court granted review, recognizing that the circumstances under which a claimant may quiet tittle to a portion of a record owner’s real property is an important issue of statewide importance.

In Arizona, boundary by acquiescence is a recognized cause of action. To prove boundary by acquiescence, a claimant must show by clear and convincing evidence (1) occupation or possession of property up to a clearly defined line, (2) mutual acquiescence by the adjoining landowners in that line as the dividing line between their properties, and (3) continued acquiesce for ten years, and (4) uncertainty or dispute as to the true boundary. Occasionally parking a vehicle on the disputed area is not sufficient to establish occupation. In addition, erecting a barrier, such as a fence or pavers, does not mean that the installing property owner acquiesces that the barrier is the property line. Last, when public deeds that are part of the court record establish the boundary line, and the parties do not dispute the accuracy of those documents, there is no dispute or uncertainty over the true boundary line. Under such circumstances, there is insufficient evidence to establish a boundary by acquiescence claim.

Justice Montgomery delivered the opinion.

Posted by: Brandon T. Delgado