Common Grantor Doctrine
In Washington State, owners commonly find themselves in situations where they have long possessed land, only to find out – typically through a survey – that some of the land they think they own sits outside of their record legal boundaries. This creates a conundrum in which a property owner has exercised longstanding ownership rights over land that, technically, belongs to someone else.
For example, this situation can arise when owners treat a fence located in the “wrong” place as the true legal boundary despite it not standing on the record boundary. Other examples include possessing a building erected over the property line, or maintaining and using landscaping that encroaches into another owner’s record property. In the event of longstanding possession, an owner can seek remedy through Washington courts and enforce ownership rights notwithstanding the record boundaries disclosed in the results of a survey. Property owners can seek relief by way of a variety of legal doctrines. Our blog has addressed some of these doctrines before, such as adverse possession here, mutual acquiescence and recognition here, and estoppel in pais here.
Another useful, but more narrowly applied legal theory, is the Common Grantor Doctrine which applies in circumstances where an owner conveys real property to a grantee but retains ownership of land adjacent to the conveyed property. The basic principle is that a grantor who owns land on both sides of a property line that the grantor established, will be bound by that line even if that line is not the record boundary. In other words, the grantor cannot enforce a record boundary line where the grantor has effectively agreed to establish a different legal boundary with the grantee.
Additionally, the doctrine can bind subsequent purchasers where: (1) the common grantor and the original grantee established an agreed boundary; and (2) a visual inspection by a subsequent purchaser would indicate that the legally described line no longer functions as the true boundary.
Typically, to establish a property line using the common grantor doctrine, the grantor and grantee must have a meeting of the minds as to the location of the boundary line. The parties do not need a formal or specific separate agreement, but rather, a claimant can show this meeting of the minds through the conduct of the owners following the conveyance. This conduct could include installation of a physical boundary like a fence, or perhaps simply the observation by both grantor and grantee of an already-existing physical object acting as the boundary.
The boundary line established by this doctrine will bind subsequent purchasers if they have notice of the line upon acquiring title. In other words, where the purchaser acquires the land with reference to the line and had a meeting of the minds as to the identical tract, the common grantor doctrine will have binding impact. While actual notice is common, constructive notice can also exist where a physical marker designates the boundary and signs of occupancy exist up to the line.
In some ways, the common grantor doctrine bears many similarities to mutual acquiescence and recognition with its emphasis on owners recognizing physical boundaries, but it fundamentally differs in requiring initial common ownership, and in not having a temporal requirement of ten years. Indeed, when compared to adverse possession and mutual acquiescence and recognition, Washington courts have not developed the common grantor doctrine to nearly the same degree. Nonetheless, seasoned practitioners should bear this doctrine in mind when faced when the right set of factual circumstances.
Unfortunately, property owners frequently run into boundary disputes, and these disputes can create significant emotional and financial distress. The lawyers at Beresford Booth have substantial experience in litigating and resolving boundary line issues, and we remain ready to assist.