THE ARIZONA SUPREME COURT RECOGNIZES A CAUSE OF ACTION FOR BOUNDARY BY ACQUIESCENCE

Beck v. Neville, 540 P.3d 906, 908 (Ariz. 2024)

In a case of first impression, the Arizona Supreme Court recognized a cause of action for boundary by acquiescence and clarified the four elements of the claim, which must be proven by “clear and convincing” evidence. The Supreme Court also considered what was required to establish the “open and notorious” element of an adverse possession claim.

The Becks filed a quiet title action pursuant to A.R.S. § 12-1101 and the Nevilles counterclaimed to quiet title based on adverse possession and boundary by acquiescence. The trial court granted the Becks’ summary judgment motion, and the Nevilles appealed. The Appellate Court held that summary judgment was improperly entered because there were disputed facts related to both adverse possession and boundary by acquiescence. The Arizona Supreme Court granted review because the circumstances related to when a party may quiet title to a portion of a record owner’s real property “is an important issue of statewide concern.” The Supreme Court agreed with and affirmed the trial court decision and reversed the Appellate Court decision.

The Supreme Court ruled that the Nevilles had not presented sufficient evidence for reasonable minds to find either adverse possession or boundary by acquiescence. Proof of occasionally parking on disputed property and preventing the actual property owner from parking on disputed property is insufficient evidence that the owner was put on notice for an adverse possession claim—especially when parking on disputed property necessarily means partially parking on undisputed property.

The elements for boundary by acquiescence are: 1) Occupation or possession of a clearly defined piece of property; 2) mutual acquiescence from landowners as to the boundary lines of said property; and 3) continued acquiescence for ten years. Mealey v. Arndt, 76 P.3d 892, 895 (App. 2003). The court in Mealey was undecided as to a fourth element requiring that the actual boundary be disputed or uncertain. The Supreme Court decided that this fourth element was necessary and unsatisfied by the evidence presented, which showed a clear and undisputed record of the actual boundary.

Mealey v. Arndt established that Arizona recognizes boundary by acquiescence. However, neither Mealey nor any other Arizona past decisions had stated the burden of proof for boundary by acquiescence, or whether the actual boundary needed to be in dispute. Deciding that matters concerning property rights concerned “particularly important individual interests” (quoting Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979), the Supreme Court set the standard of proof to be “clear and convincing.” The fourth element (“that the true boundary is disputed or uncertain”) must be included. But the Becks failed to offer any evidence of an uncertain or disputed boundary and their claim, therefore, failed as a matter of law. The Supreme Court found that acquiescence is unnecessary where boundaries are clear.

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