Boundary Line Adjustments: Moving the Line is Not Enough

Note: This article was first published in the July 2015 issue of Hampton Roads REALTOR® Magazine. To read the issue, click here.

At some point in their careers, most REALTORS will probably run into a transaction involving a boundary line dispute. Those disputes usually arise when one of two neighboring properties goes up for sale, and the potential purchaser obtains a survey that calls the boundary into question and conflicts with the neighbors’ understanding of the boundary or an earlier survey. Often, boundary disputes can be resolved by the execution of a boundary line adjustment agreement between the parties, the recordation of subdivision plats to make the agreed-upon boundary official in the eyes of the locality, and deeds to and from the neighboring landowners to make sure that each of them owns all of the property on his side of the agreed upon boundary.

When boundary line disputes cannot be resolved amicably, the neighbors must turn to the courts to establish the boundary line. Section 8.01-179 of the Virginia Code sets forth the process by which a landowner may sue one or more neighboring landowners to ascertain and designate the true boundary lines between their properties. Section 8.01-179 by itself, however, is usually not enough to resolve all of the disputes generated by an uncertain boundary, as the Virginia Supreme Court reiterated in the case Howard v. Ball, decided on April 16, 2015.

Howard v. Ball involved adjacent parcels of land in Buchannan County, Virginia. The property was owned by a common owner until 1905, when a portion of it was sold to the predecessors in interest of Leslie Ball. By later deeds in 1956 and 1971, Bertha Howard acquired the piece that adjoined Ball’s. A prior owner of the Ball property had a survey performed in 1957 and built a fence along the property line between the Ball and Howard properties as shown on the 1957 survey. In 1996, Bertha Howard had a survey completed that showed a boundary line consistent with the location of the fence. In 2009, however, Howard had a second survey prepared, which showed that the property line was actually south of the 1957 fence, inside the parcel of land claimed by Ball.

Based on the 2009 survey, Howard filed suit under Section 8.01-179 to establish the boundary line between her property and Ball’s. Ball represented himself pro se and filed an answer that disputed Howard’s claim, asserting that the 1905 deed to his predecessor in interest and the 1957 survey showed that the fence line was indeed the property line. During the trial, in addition to hearing testimony from the land surveyors who drew the 1996 and 2009 surveys, the court considered whether Ball could put on evidence of adverse possession of all the land on his side of the fence. Ball said his evidence showed that he and his predecessors in interest had used the area for timber, tobacco, and cattle for the requisite period of time to establish adverse possession. The trial court first denied Ball’s attempt to introduce his adverse possession evidence because he had not raised that issue in his initial answer. The court then reversed itself when Ball presented a 1921 case stating that he was not required to raise the defense of adverse possession in an action to establish boundary lines.

Howard appealed the trial court’s contradictory rulings to the Virginia Supreme Court, which ruled in favor of Howard. Ball was, indeed, required to raise his adverse possession defense at the outset in his answer to Howard’s complaint. Because he had only disputed Howard’s location of the line and not raised adverse possession, he was not permitted to raise that defense during the trial itself.

The Supreme Court did not stop there, however. The court noted that even if Ball had presented and won his adverse possession claim, the trial court would have violated Virginia precedent by deciding ownership of the property. In Virginia, an action to establish a boundary line is simply that, an action to determine where the boundary between two parcels lies. It does not decide the issue of title and ownership of the property on either side of the disputed line. A title and ownership issue can only be decided when the parties have brought that issue into dispute by the pleadings. In this case, Howard had proceeded under Section 8.01-179 only. Neither she nor Ball had asked the court to determine who owned the property on either side of the disputed line. Ball thus could not raise his adverse possession defense in the middle of trial, because that would have resulted in an ownership decision that neither party had requested in the pleadings.

Setting aside the procedural aspects of Howard v. Ball, the important point for REALTORS and their clients to understand is that in the event of a boundary line dispute, simply shifting the line by a suit brought under Section 8.01-179 is not enough. Most parties want not only to shift the line, but confirm the ownership on both sides of the line. In order to do that, the complaining party will need to utilize one of the other actions that Virginia law provides in the event of disputes over ownership or possession of property, such as trespass, quiet title, or ejectment. Owners who fail to recognize that a boundary line adjustment suit is not enough, may succeed in moving the line in their favor, but not in proving that they own all of the land within the shifted line.