The Unrecorded Survey and the Statute of Limitations on a Boundary Dispute
A client owns a 40-acre parcel described by metes and bounds in a 1978 deed. In 1995, a surveyor surveyed the parcel and set monuments, but the survey was never recorded. The client's predecessor built a driveway and a shop building that encroach about 12 ft onto the adjoining parcel, relying on the 1995 monuments. The adjoining owner has known about the encroachment since at least 2000 but has never objected; the adjoining owner now wants the encroachment removed. The client has paid taxes on the 40 acres as described in the deed, not on the encroachment. Alaska's adverse possession statute is AS 09.10.030 (10 years), and AS 09.45.052 addresses boundary by acquiescence or practical location. The client asks whether he now owns the encroachment.
1. Analyze the adverse possession claim, including the tax payment requirement and the effect of the unrecorded 1995 survey.
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Adverse possession requires actual, open, notorious, exclusive, hostile, and continuous possession for the statutory period, and Alaska conditions a claim of title by adverse possession on payment of all taxes levied on the land. The client has paid taxes only on the deed description, not on the 12-ft encroachment, so the tax condition is not met for the encroachment. The possession has been open and continuous since the mid-1990s (over 10 years), but the failure to pay taxes on the encroachment is a fatal gap unless the taxes were in fact assessed and paid on the encroachment as part of the parcel. The unrecorded 1995 survey does not create title and does not, by itself, establish a boundary; it is evidence of the predecessor's intent and of the monuments relied upon. The claim is therefore weak and likely fails on the tax requirement, and the client should not assume ownership.
2. Analyze the boundary by acquiescence or practical location theory under AS 09.45.052, and whether the 1995 monuments support it.
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Boundary by acquiescence or practical location requires that the parties treat a line as the boundary, usually with the belief that it is the true line, for the statutory period, and that the true boundary is uncertain or the parties have agreed to a line. Here the 1995 monuments were set by a surveyor and relied upon by the predecessor; if the adjoining owner knew of and acquiesced in the monuments as the boundary for the statutory period, the doctrine may apply. But acquiescence requires more than silence where the encroachment is obvious and the true line is known or knowable; the adjoining owner's failure to object for over 20 years is evidence of acquiescence, but the client must show the adjoining owner treated the monument line as the boundary, not merely tolerated an encroachment. The unrecorded survey and monuments are strong evidence of the line relied upon. The claim is arguable but not certain, and the client should be advised of the risk.
3. What should the surveyor do in this situation, and what professional and ethical obligations apply?
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The surveyor must survey the true deed lines and the 1995 monuments, show the encroachment, and not certify a boundary that is not supported by law. The surveyor should not record a survey that misstates the boundary or conceals the encroachment. The surveyor should advise the client that the encroachment is a legal question, recommend consultation with an attorney, and document the facts (monuments, dates, possession, tax records) that bear on adverse possession and acquiescence. If the client wants to pursue a boundary line agreement or quiet title, the surveyor can provide the survey and evidence but must not give legal advice. The surveyor should also consider whether a record of survey is required and should disclose the encroachment to the adjoining owner if the client authorizes it. Ethical duties of competence, honesty, and full disclosure of the facts apply.