Solving commercial boundary line disputes without civil litigation

Dane Mueller

Dane Mueller, Esq.
Senior associate, Robinson & Henry PC, Castle Rock

Generally, commercial landowners have a fairly accurate understanding of where their property begins and ends. However, peaceful coexistence with neighboring businesses can easily be disrupted by disputes pertaining to boundary lines. Commercial boundary line disputes in Colorado often involve highly complex legal issues that depend on a multitude of elements. In the event litigation is initiated, the court will determine which party owns what land. Potential claims that could be at issue include trespass or adverse possession. Regardless of the asserted claims in the lawsuit, it almost always is a guarantee that the case will be accompanied by draining hostility between the parties and large legal fees.

However, rather than initiating civil litigation to determine an exact boundary line, property owners can enter into what is known as a boundary line agreement. Under a boundary line agreement, owners can mutually agree to the location of a disputed boundary line. Boundary line agreements offer an expedited, cost-efficient answer for all parties involved in such a matter.

Property boundaries are the lines on a county’s tax map that separate the different parcels of land. While in some scenarios property boundary lines are apparent, such as in apartment complexes or condominiums, others can be more unclear. For example, boundary disputes can occur through the physical encroachments from an adjacent landowner constructing a parking lot over a neighboring business’s land. Another example is when an adjacent landowner misplaces a boundary wall. However, boundary line disputes also can be the product of legitimate disagreements between landowners as to the legal descriptions in the applicable vesting deeds or confusion stemming from improvements appearing on a survey.

In Colorado, our state provides statutory language that defines the necessary elements of a boundary line agreement. Colorado Revised Statute § 38-44-112 states the following: “Any uncertain line, uncertain corner, or uncertain boundary of an existing parcel of land that is recorded in the real estate records in the office of the clerk and recorder for the county where the land is located and that is in dispute may be determined and permanently established by written agreement of all parties thereby affected, signed and acknowledged by each as required for conveyances of real estate, clearly designating the same, and accompanied by a map or plat thereof that shall be recorded as an instrument affecting real estate, and shall be binding upon their heirs, successors, and assigns. If the map or plat is prepared by a licensed professional land surveyor, monuments shall be set for any line, corner, or boundary included in the agreement.”

Despite the legal jargon in the statute, there are necessary requirements to make a boundary line agreement enforceable in the state of Colorado. First, there must be uncertainty to the location of the line. This should be an obvious requirement because if the parties acknowledge and agree to a certain boundary there likely would not be a dispute.

Second, every affected party must agree to the location of the line. This requirement applies even if there are more than two parties that may be affected by the boundary line that is disputed.

Third, the affected parties must act as if the agreed line is the actual boundary line. For instance, if a boundary line agreement is entered into because of a fence separating the properties, the parties should not tear down the fence after entering the agreement and establishing the boundary.

Fourth, the boundary line must be apparent. Usually, parties denote the agreed upon boundary through the use of some sort of fence, wall or landscaping.

Next, the mutually agreed upon boundary line must be memorialized in writing, which must be signed and acknowledged by every affected party. Also, the boundary line agreement must be accompanied by a map. The best practice is to enlist the services of a licensed land surveyor. (If the map is prepared by a licensed land surveyor, the boundary line must be monumented.)

Finally, the boundary line agreement must be recorded with the office of the clerk and recorder for the county in which the property sits.

Written property line agreements pursuant to the statutory requirements listed in C.R.S § 38-44-112 are quick and simple solutions to boundary disputes. These agreements are preferred in obtaining an amicable outcome and avoiding costly litigation.

Featured in CREJ’s Oct. 18-31, 2017, issue.

Edited by the Colorado Real Estate Journal staff.