Did You Know?
It happens every so often. A client calls or comes in, very frustrated. Apparently, a new survey obtained by him or his neighbor shows that a fence is not on the survey boundary like it should be. Instead, the fence is off by a few feet, yards or more. And based on the survey, the client or his neighbor wants to push the other one off.
In many of these cases, the deed and survey will not make a difference. The law in Arkansas is that if a fence has been treated as the boundary line for so many years, it becomes the actual boundary. A new deed must be written to make the fence the boundary. This is called “boundary by the acquiescence”, and the rationale is that it promotes stability of title and boundary lines. The concept is this: when two adjoining landowners recognize a boundary line for many years, it is unfair to change the lines.
In order for boundary by the acquiescence to be applied, there must be a tacit agreement by the parties to recognize a fence, landmark, or other monument as the dividing line between properties. This tacit agreement does not have to be verbal. Silence can be interpreted as agreement when the parties’ conduct otherwise infers where the boundary is. The most common example of a tacit yet silent agreement includes when both owners cut the grass up to the fence lines. Another example is where they let their livestock graze—usually up to their fence lines.
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