Fence in the Wrong Place? You'd Better Speak Up!

January 22, 2016
Kristine A. Tidgren

A recent case from the Iowa Court of Appeals should again remind landowners to protect their boundaries or lose them.

The plaintiffs brought their action to establish a disputed boundary. Since at least 1992 (and possibly 1982), the parties’ properties had been separated by a fence that was approximately 33 feet from the actual survey line. The fence, which was maintained by the parties, encroached upon the plaintiffs’ land. When the defendants began to sell their property, the plaintiffs brought their action. The district court, however, ruled that a boundary by acquiescence had been established.

On appeal, the Iowa Court of Appeals agreed. Although the plaintiffs argued that their predecessors in interest did not believe the fence was the property line, the court said that was immaterial. What mattered, the court held, was whether the plaintiffs (and their predecessors in interest) had acquiesced or “mutually recognized” for a period of at least 10 years that the fence was the boundary line between them.

Acquiescence, the court ruled, can be inferred from 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 ruled that substantial evidence supported the finding that the plaintiffs’ predecessors in interest accepted and tacitly approved the fence as a boundary line. Once the 10-year mark passed, a new boundary was established.

This is one area I guess where being too nice can really come back to bite you.

The case is Nafziger v. Pender, 2016 Iowa App. LEXIS 23 (Iowa Ct. App. Jan. 13, 2016).

 

 

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