Prescriptive Easements on the North Coast of Oregon

A “prescriptive easement” is a type of easement based on one property owner’s obtaining the legal right to use another property owner’s property for a limited use, without a recorded easement in place. This type of easement is also referred to as “easement by prescription” or “prescriptive rights.”

A prescriptive easement in Oregon is similar to adverse possession, but only allows the property owner who has the prescriptive easement to use another property for a limited use, and does not mean that they have come to “own” the other property. Thus, a prescriptive easement holder is still limited by the rights of the other property owner.

Prescriptive easements are not a matter of written record, so a title search will not reveal their existence. This means there will not be a “prescriptive easement” recorded in the county where the property is located, and the deed for the property, as well as deeds in the chain of ownership for prior owners, will not contain any references to a prescriptive easement.

Whether a prescriptive easement exists depends on whether the facts and circumstances of a particular case fit the law of prescriptive easements in Oregon. Because such easements involve unwritten rights, they can only be proven either by the affected property owners’ agreement to document and record a written easement to memorialize the rights and responsibilities associated with the prescriptive easement, or by at least one of the affected property owner’s filing a lawsuit in an Oregon circuit court to have a judge determined their property rights.

It is important to recognize that prescriptive easement rights are not self-executing—i.e., a title company, the affected property owner, and prospective buyers will not recognize prescriptive easement rights which have not been memorialized in a recorded easement document. Such rights require action on the party seeking to protect their prescriptive easement rights; otherwise, such rights, though they may well exist, may not be recognized, and may actually be modified or terminated over time, depending on how facts later develop.

The typical way for a party to file a lawsuit to determine whether a prescriptive easement exists would be a quiet title action in the circuit court where the property is located. On the north coast of Oregon, this would mean a dispute involving a property in Clatsop County, Oregon, would be heard in Clatsop County Circuit Court, while a dispute involving a property in Tillamook County, Oregon, would be heard in Tillamook County Circuit Court. Such a lawsuit would be filed under ORS 105.605.

A quiet title action is a type of civil lawsuit which helps a party to determine the exact nature of its property rights, as well as the property rights of other parties included in the lawsuit. A judge decides the case, not a jury. A quiet title action can help determine whether a party has obtained prescriptive easement rights, including the nature and scope of such rights.

Typically, a dispute over whether a prescriptive easement exists revolves heavily on the facts of the case, and involves proof of historical facts through witness testimony and documentation. Thus, the party seeking to prove the existence of such an easement will need to marshal admissible evidence to prove their case to a judge, while a party seeking to disprove the existence of such an easement will need to show that the other party has not met their burden of proof and/or marshal their own admissible evidence to disprove the other party’s case.

A prospective buyer of real property can perform due diligence which can help to discovery a potential prescriptive easement, including carefully examining the property in person, carefully reviewing the title report, and carefully considering the nature of the property itself. Prescriptive easements typically revolve around issues such as access to property for ingress and egress, such as a gravel road or paved road. Additionally, prescriptive easements may involve accessing an adjacent property for natural resources, such as a water source or timber. Thus, holistically examining a property and considering its historical use can help a prospective buyer identify potential prescriptive easement issues.

One avenue for a prospective buyer to research a potential property and whether it may be affected by a prescriptive easement would be to research whether the current owners of the property of interest and adjacent properties have had any legal disputes which appear in court records, as well as to examine the current deeds. Additionally, further research to examine whether previous owners of the property of interest and adjacent properties have had any legal disputes which appear in court records, as well as to examine prior deeds.

A property owner claiming in a lawsuit to have obtained prescriptive easement rights must prove that there has been “open and notorious use” of another property owner’s property which is adverse to the other property owner for a continuous and uninterrupted period of at least ten years. Prescriptive easements are not favored by law, since they effectively allow one property owner to acquire an interest in another property owner’s property without bargaining for and paying for such an interest. A part claiming prescriptive easement rights has the burden of proving their case “by clear and convincing evidence,” a high burden of proof.

A key fact in easement by prescription cases is whether the property owner upon whose property the easement would be located knows or should have reason to know of the easement. I.e., the court will want to have confidence that the affected property owner knew or should have known about a prescriptive easement. Such a determination tends to revolve around the nature and extent of the claimant’s use as well as of the property itself, so such cases may be highly fact-dependent in terms of their outcome.

At Coast Land Law, we help clients with prescriptive easement issues, from understanding prescriptive easement rights, to assisting with easement negotiations, to filing and defending lawsuits involving prescriptive easement rights. Please contact Coast Land Law for a consultation about you can best protect your easement rights.

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