The Arizona Supreme Court recently issued an important decision that expressly authorizes a new legal claim concerning real property. More specifically, in Beck v. Neville, 540 P.3d 906 (2024), the Supreme Court held that “Arizona law recognizes a cause of action for boundary by acquiescence.” Id. at 1. Prior to the Beck decision, real property could be acquired in one of three ways: (1) by gift or devise (inheritance); (2) by purchase; (3) or through “squatters rights via a claim for adverse possession. But now, per the new decree just issued by the Supreme Court, real estate can also be obtained by accident.
The Beck case concerned two adjacent property owners: the Becks and the Nevilles. The Nevilles owned the parcel that is located immediately north of the Beck parcel. In around 2004, the Becks made certain landscaping improvements to their front yard, including the installation of colored rocks for ground cover and decorative stamped concrete pavers. The landscapers, however, mistakenly placed the pavers in the wrong location, which made it appear that the pavers constitute the northern boundary of a ten-foot gravel driveway running from the edge of the street straight back to the double gate on the north side of the Neville property. The dispute at issue centered around the 135 square foot, triangle shaped gravel driveway (the “Disputed Property”), which results in a net increase in real estate to the Nevilles and a net decrease in real estate to the Becks. See picture below.
The parties agree that the pavers were placed in the wrong location by mistake and that the resulting physical boundaries were incorrect. Apparently after the Becks learned of the mistake, they informed the Nevilles of the error and attempted to ask the landscapers to move the location of the pavers, but the landscaper went out of business and the pavers were never moved.
Approximately 15 years later, the Becks remodeled their backyard, which required installation of drainage pipes from the end of the common wall down to the edge of the street. This work would require the Becks to dig up the Disputed Property, after which they informed the Nevilles that they intended to place the pavers in their rightful place, along the true boundary line. After learning of their intentions, the Nevilles informed the Becks they owned the Disputed Property and objected to the Becks taking any action to disturb the Disputed Property. The Nevilles then doubled down and sent the Becks a “quiet title” cease and desist letter per A.R.S. 12-1103 alleging adverse possession and boundary by acquiescence of the Disputed Property. The Becks subsequently filed suit against the Nevilles for quiet title and the Nevilles filed a counterclaim to quiet title to the Disputed Area. The trial court ruled in the favor of the Becks on summary judgment and the Nevilles appealed to the Court of Appeals. The Court of Appeals reversed the trial court’s ruling, finding that the parties’ competing declarations raised questions of material fact that precluded summary judgment without a trial. The Supreme Court then granted review “because the circumstances under which a claimant may quiet title to a portion of a record owner’s real property is an important issue of statewide concern.” Or as others may say, “we take property rights very seriously in Arizona!”
After assessing the parties’ arguments, the Supreme Court recognized the new legal claim of “boundary by acquiescence,” but determined that the Nevilles failed to prove their case. Further, the Supreme Court decreed that such a claim for boundary by acquiescence may only be established by proving each of the following four elements by clear and convincing evidence:
⦁ occupation or possession of property up to a clearly defined line;
⦁ mutual acquiescence by the adjoining landowners in that line as the dividing line between their properties;
⦁ continued acquiescence for ten years; and
⦁ uncertainty (mistake) or dispute as to the true boundary
See Beck v. Neville, 540 P.3d 906 at 913 (2024). In other words, if two adjoining property owners agree that the true boundary is uncertain, and the property owners agree that the existing physical boundary is fine for at least ten years, then neither party can take action to disrupt the existing boundary that they both agree to.
So if the party claiming boundary by acquiescence must prove that the parties agree on the existing boundary, doesn’t that beg the question, “why do we need such a legal claim in the first place, since the parties already agreed on the existing boundary?” “And why would the Supreme Court accept certiorari of this case with such a seemingly obscure legal issue?”
One explanation may be what economists are referring to as the coming “greatest wealth transfer in history.” See Forbes Article here.
Experts predict that over the next decade or so, baby boomers are expected to transfer $30 trillion in wealth to the next generation – and much of that wealth includes real property. So although it seems unlikely that current neighbors will sue one another regarding a property boundary that they both agree on, if one or both of the property owners pass away, their heirs may not be so sure about the correct boundary line….
If you or someone you know has questions about real property claims for adverse possession, prescriptive easements, boundary by acquiescence, or any other real estate issue, call or email us today to schedule a consultation with Mr. Charles or one of our other real estate attorneys.
Christopher J. Charles is the Founder and Managing Partner of Provident Law ®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS ® (the “AAR”). In 2017, Mr. Charles obtained one of the Top Ten Civil Verdicts for his client in a real estate dispute. Mr. Charles holds the AV ® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions. Christopher regularly teaches continuing education classes at the Arizona School of Real Estate and Business, and he can be reached at Chris@ProvidentLawyers.com or at 480-388-3343.