The transfer of land generally requires a written document, which is then recorded. This is per a body of contract law called the Statute of Frauds. The Statute of Frauds emerged in common law to protect against situations in which someone might make a claim based merely on what was purportedly spoken. The idea is to prevent people from making wanton, frivolous claims and instead “put it in writing.”
End of story? No. Law is based as much, if not more so, upon the exception to rules, as it is upon the rules themselves. Parole Agreement is one of those exceptions. But of course there are sub-rules – which lawyers call “elements” – that need to be satisfied in order to have a judge “rule” favorably for one claiming parole agreement.
Attempting to break free of all this complexity, here are the elements for Parole Agreement:
- There must be a “bona fide” dispute as to the location of the boundary between neighboring real property owners;
- That dispute must have been reconciled by mutual assent (i.e. “a meeting of the minds”) in which the parties come to recognize a “true boundary”;
- That “true boundary” must be a definite line which is clearly recognizable on the ground; and
- Occupancy up to that line must be maintained by both neighbors in such a manner that “constructive notice” of the boundary line is provided to successors in interest (i.e. subsequent purchasers, heirs, assigns …).
Perhaps most notably here, judges don’t just allow a “he-said/she-said” type of neighborhood rift to bound into their courtrooms. Instead, the parties both must demonstrate acceptance of the boundary line.
Now, this seems rather similar to Mutual Recognition & Acquiescence. What’s the difference? Timing and Teamwork.
Parole Agreement, at least as far as I can tell, is a contemporaneous event in which both neighbors identify a boundary line problem between themselves and then they work to resolve it. In other words, they mark out their understanding on the ground.
Mutual Recognition and Acquiescence, by contrast does not require that the two parties “get their heads” together. Instead, it simply requires that a party coming to the situation does not raise a fuss and in failing to do so loses his or her right to do so after passage of the Statutory Period provided by Adverse Posession.
There is another angle to all of this of considerable note. It appears that the burden of proof for Parole Agreement is a preponderance of the evidence standard. However, the question of who has the burden of production practically speaking is the greater challenge.
Here’s why … contract law favors the non-drafting party in the event of ambiguity. But guess what? Here, there is no written document. By default, it would seem that the party claiming parole agreement is the party that has to produce the evidence and carry then carry the burden to prove it. And it is here, that a component of “he said/she said” will often slip proceedings. And that will keep everyone involved up at night when dark and on their toes when light.
Upshot, when you have an issue with your neighbor, do seek to resolve it peacefully. Yet, also seek out a boundary dispute attorney to document your agreement and then file it. The whole world is now on notice, and neither you, your neighbor, nor successors in interest on either side of the real or imagined boundary line will curse at a later time.