When there is a boundary line dispute between neighboring properties, many people learn first of the doctrine of adverse possession, a legal principle derived from common law under which ownership of a parcel of property (or a portion thereof) can change without payment and against the will of the owner.
However, it is not always necessary to resolve a boundary dispute through a claim of adverse possession, and its requirement of a "hostile" taking. Alternative relief may be available under the doctrine of acquiescence. The doctrine of acquiescence looks at the past conduct of neighboring property owners to determine if a boundary line can be legally implied from their past agreement, actions or inaction.
The law of acquiescence is concerned with adjoining property owners, both of whom are mistaken about where the line between their property is. For example, adjoining property owners may treat a boundary line, often a fence, as the property line, even though the boundary line is in fact at a different location.
If the boundary line that the neighbors observe is not the actual, recorded property line, one property owner will be in possession of some portion of what is actually the other property owner's land. Even when a boundary line mistake results from mutual error, the property owner whose land is being possessed by another may normally file a cause of action against the other property owner to recover possession of the land.
When the doctrine of acquiescence applies, the property owner of record is no longer be able to enforce his title, and the other property owner will gain title.
Real estate laws vary significantly from state-to-state. The question of whether a claim of acquiescence is possible and the elements of an acquiescence action may be different depending upon where a real estate boundary dispute arises.
Under typical state law, acquiescence to a boundary line between properties may result in a change of ownership in three ways:
Acquiescence for the Statutory Period: The neighboring landowners treat a particular boundary line as the dividing line between their properties for the statutory period, even though it differs from the boundary line defined by their deeds. The statutory period ("statute of limitations") for acquiescence can be quite long, and is often fifteen years or longer in duration.
Dispute and Agreement: The neighboring landowners have an actual disagreement as to the location of the boundary line, and ultimately agree upon a boundary line which is not consistent with that set forth in their deeds.
Acquiescence Arising from Intention to Deed to a Marked Boundary: A grantor intends to deed property to a physical boundary but mistakenly uses an incorrect legal description in the actual deed. The observance of the intended boundary line may create a legal basis to adjust the boundary line to its intended location.
Acquiescence for the statutory period depends upon the passage of time, and a court action can succeed only after the statute of limitations expires. For dispute and agreement or acquiescence arising from intention to deed to a marked boundary, the new boundary line may become enforceable through a court action without respect to how much time has passed.
In adverse possession cases, the taking of land must be hostile to the title landowner's interest. Within that context, the term hostile means that a person possesses the land of another and intends to hold to a specific, recognizable boundary without regard for the true boundary line.
In acquiescence cases, neither neighbor intends to take property from the other, but there is a mutual mistake as to the location of the actual boundary line. A claim in an acquiescence case cannot be hostile" - if both neighbors believe they are observing the true boundary line and thus that they hold only their own land, they cannot simultaneously claim that they are holding the property of another without regard to the true boundary line.